Select Committee on Constitutional Affairs Written Evidence


Further evidence submitted by Mental Health Lawyers Association (LAR 137a)

REGARDING THE ORAL EVIDENCE SESSION OF 30 JANUARY 2007

  Following our recent emails and telephone conversations, I enclose:

    (1)  A recent report from the Association dated 15 December 2006 regarding a decline in the number of specialist lawyers in the field as against increased legal need for those vulnerable to mental disorder.

    (2)  Extracted details from the recent Commons debate on Legal Aid regarding mental health.

  You should now have my autobiographical note.

  In addition here is the latest "update."

1.  MEETING WITH CAROLYN REGAN

  On 15 December Association representatives had their first meeting with the new Chief Executive of the Legal Services Commission, Carolyn Regan. Inevitably the issue of post Carter changes were discussed and we were, unfortunately, disappointed.

  In particular, the Chief Executive indicated three "certainties":

    (1)  The proposed fixed fees were here to stay.

    (2)  They will be introduced in October 2007(extended from April 2007).

    (3)  There will be no more money, notwithstanding Lord Falconer's earlier indications that this should follow Lord Carter's review. The last increase in mental health legal aid rates for Mental Health Review Tribunals was in April 2001.

  Whilst we accept that there will be further discussions, certainties appear to include a lack of payment for preparation and only one payment for a Tribunal hearing date, notwithstanding any number of cancellations or adjournments, for whatever reason. At present hourly rates may be retained for "forensic" cases, although the Commission does not favour this. However, the concept of lack of payment for further work "within the same period of illness" appears to remain. The implications of this latter proposal are that no preparation work for a Tribunal will be paid for if a solicitor has represented a client "within this same period of illness", notwithstanding that a client makes a fresh application to the Tribunal. This completely ignores the changes that may occur in a client's detainability as a result of changing diagnosis, changing medication and other circumstances (for example obtaining a supported supervised accommodation.

  At present we have been unable to convince the Commission that the current proposals are simply unworkable. Lack of work to prepare for Tribunals will leave members open to negligence claims, will cause them to breach their contract with the Commission (via peer review assessments) and make them liable under the Human Rights Act. In addition clearly the lack of preparation would fundamentally affect work which the Tribunal, the Liaison Judge and Regional Chairs are planning to develop case management.

  I am attaching the most recent brief paper which the Association presented to the Commission. The existing trend of a reduction in skilled legal representatives continues. Indeed we took to the meeting with Carolyn Regan a Law Society Panel member who was leaving the area of law permanently and asked him to explain why he was doing this. His contribution appeared to make little impact on the Chief Executive, or the Director of Community Legal Services, who was also present.

  We know the Commission favours the "banding together" of "small suppliers" who they consider to be uneconomic in terms of "economies of scale", however if they think this will happen on any scale before October they are completely mistaken. Indeed many members would leave the field altogether rather than merge, even if was economically viable. Employment law is one of the options most actively being considered by members.

  What the Commission fails to understand is that there is absolutely no slack in the financial regimes on which members operate. Many were looking to Lord Falconer to fulfil what was indicated last year (and what was indicated as one of the reasons of Lord Carter's review) a transfer of resources from crime to the civil sector. This, it seems, is no longer forthcoming. In the meantime, the present system works either because members are paid for what they actually do ("the hourly rate") or on the basis of what they individually did in the previous year ("the Tailored Fixed Fee"), which reflects payment for each individual "new matter". By combining firms' very different profiles, the system remains workable, albeit on ever reducing margins, this fragile regime is broken in the scheme now proposed.

  In addition, the lack of legal representation will not only stop the development of any form of case management but also may perhaps prevent the operation of the Tribunal itself.

  A lack of representation will also breach the European Convention on Human Rights at Articles 5 and 6, and therefore the Human Rights Act 1998. Inter alia the case of Megyeri v Germany (1993) set out the duty on the state to ensure that a detained patient was legally represented under the European Convention on Human Rights.

2.  GOVERNMENT POSITION

  We attach details of the recent Parliamentary debate in Westminster Hall. We were greatly surprised to note that the Legal Aid Minister, Vera Baird, had indicated to Parliament before Christmas that we had "no concerns" as to the current developments, as this is the precise reverse of the position. The Minister attended our Annual Conference on 3 November 2006 and received an outcry from members who thought Government proposals completely unsustainable. Following questioning on this point in the debate she qualified her statement.

  At our Conference Vera Baird made it clear that she would meet with representatives of the Association. Plans were made to meet with her this month, and a date set, however we it now appears that the Minister has withdrawn her invitation. We have yet to receive the reasons for this. This lack of information only further exacerbates the intense uncertainty members have in developing any plans for their future.

  We are aware that the Legal Services Commission are conducting a new "survey" of our work. Files are being selected by staff for study. Unfortunately, members have been contacting the Association to say they are concern that the files selected are unrepresentively small. They fear that this is another statistical device by the Commission to slant figures in their favour. We assume these figures will be used in an attempt to "inform" any further changes to the contact.

3.  EXISTING "TAILORED FIXED FEES"

  The Legal Aid Minister as made reference to "fixed fees" working to date for half suppliers in mental health law; this is unfortunately misleading. As outlined above, there is a system of "tailored fixed fees" operating at present. Two years ago the Commission attempted to impose this scheme on all members, however two thirds refused to sign to the new contract. As a result the Commission made it voluntary, with the remaining members continuing to be paid at the old hourly rate. There was considerable pressure for members to sign to this fixed fee system, and once signed up members could not leave. The Minister has suggested that members have "chosen" not to leave, but quite simply the contract does not allow them to do this, and requests of members to leave has been turned down.

  However, "tailored fixed fees" have suited some members; although the Association understands that it remains closer to a third rather than a half suggested by the Minister, of all those provided legal representation in this field. Tailored fixed fees are completely different from the "rigid" fixed fees proposed and those members signed up to tailored fixed fees are vocal that the new system would not work for them either. The exchange in the Westminster Hall debate with the Minister regarding the firm Burke Niaizi reflects this point.

4.  JUDICIARY

  We understand the judiciary administering much of our legal work has met with Government representatives and written to the Legal Aid Minister stating their own view that these plans are unworkable.

CONCLUSION

  The conclusion remains that representation will melt-down in October of this year if this system is imposed: this will not be industrial action, these will simply a completely unworkable proposals for our members who will be unable to sign up.

  Please let me know if you require any further details.

  Best Wishes.

Richard Charlton

Chair

Report of Mental Health Lawyers Association Decline in Representation

  This summary report is the responsibility of the Mental Health Lawyers Association. Figures are compiled from Law Society sources and an Association survey conducted earlier in 2006. The Law Society figures are current to November of 2006.  

DECLINE IN NUMBER OF LAW SOCIETY MENTAL HEALTH REVIEW TRIBUNAL PANEL MEMBERS

  The number of Mental Health Review Tribunal Panel Members has changed as follows:

      1999    451

      2000    478

      2001    485

      2002    460

      2003    436

      2004    446

      2005    416

      2006    364

  These figures represent the highest number of Panel members in any one year. The 2006 figures includes a minimum of 30 members who have recently surrendered their practising certificates and 13 members who have had their membership suspended for "good reason", such as maternity leave.

  Membership of the Panel is normally for a period of three years and therefore there would be a "time lag" of members' intentions accordingly.

AGE PROFILE OF PANEL MEMBERS

  The figures below represent to ages of Panel Members.

  In the statistical basis of this graph at the end of 2005, 45% of MHRT Panel members were women and 55% were men.

  It will be seen, especially amongst men, that the highest proportion of members is in the older age range, indicating that fewer are apparently intent on making such specialism their career.

MHRT ACTIVITY—NOW AND IN THE FUTURE

  According to the MHRT Review of Activity April 2001 to March 2005 there was just under a 3.5% increase a year in both applications and hearings. Thus applications arose from around 20,000 to 22,000 a year in this period and full hearings from around 11,000 to 12,000. Information provided to the Mental Health Lawyers Association by the MHRT Secretariat indicate that this rate of increase has continued through 2006, implying that applications will be close to 24,000 in April of next year.

  In addition to the current MHRT activity, the recently introduced Mental Health Bill provides for Community Discharge Orders with new MHRT reviews both for when the new Orders are given and if a patient is subsequently recalled to be an in-patient again. These are new rights. In their impact assessment the Department of Health have indicated that they foresee that they will be a further increase of 2% in MHRT hearings as a result of these proposals. However, on direct questioning by Association representatives it is clear that this is a very rough estimate which may well be an underestimate. In addition the Bill provides a power for Ministers to bring forward the "automatic referral" to a MHRT for unrestricted detained patients. The Association understands that this power will be exercised when resources allow. It is assumed that this includes adequate legal representation for such patients.

CONCLUSION

  These figures show a confirmation of the decline in Panel members, as against a rise in MHRT activity, both current and forecast. Furthermore, the age profile of Panel members clearly indicates that fewer lawyers are taking Panel membership as part of their future career.

December 2006





 
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