MHLA response to Consultation on Legal Aid, Sentencing and Punishing of Offenders Bill

Response of the Mental Health Lawyers Association to Legal Aid, Sentencing and Punishing of Offenders Bill

“Destroying Representation for the Mental Unwell for £3 million?”

1. Introduction

The Mental Health Lawyers Association (MHLA) represents the majority of solicitors and solicitors firms who represent those detained in hospital. Our members have been involved in significant cases that have helped establish the rights of vulnerable people. The Association was founded in 2000 and has contributed to many consultations on issues that concern our members and those we represent. The Association is recognised as the organisation representing specialist lawyers in the field by bodies including the Law Society, the Judiciary, the charity MIND and the Ministry of Justice itself. We have met with a range of Government and parliamentary figures, including Ministers. In addition a representative of the Conservative Party, Edward Garnier, addressed a recent MHLA conference, in November 2009.

2. 10% Reduction in Fees

2.1. Introduction
The MHLA welcomes that the work of our members will generally remain in scope of the legal aid scheme. However we are greatly concerned with regards to the 10% reduction in fees which are still proposed, notwithstanding our particular earlier representations as to this jurisdiction, which were not addressed in your response. This will be disastrous for many of our members and therefore for the highly vulnerable clients that we represent. We see ourselves as a frontline service to our clients, but now consider that much of this service will collapse. This risk of collapse runs directly counter to the acceptance that this representation should remain within scope as a central plank of the legal aid scheme.

Our work with detained patients is seen by all, including the Ministry of Justice, as “core legal aid work”. Indeed when we were addressed by Edward Garnier, and in other dealings with the Conservative Party prior to the last election, we were impressed by the acceptance that our work was central to the operation of justice in a civilised society given our highly vulnerable clients.. However these proposals, and in particular the 10% cutback, do appear to directly contradict this assurance.

The ability of those detained due to an alleged mental disorder to receive representation to challenge such detention is critical to the United Kingdom’s compliance to the European Convention on Human Rights. This is why such work it is one of the few non-means tested areas of legal aid. However, the effectiveness of such representation, as we pointed out to shadow conservative Ministers prior to the election, has been in decline for many years.

2.2. Decline in Specialists in the field
The need for specialist representation for the most vulnerable in our community was the reason why the Law Society set up the first specialist Panel of lawyers in this area of practice. However, membership of this Panel has declined by around 25% since 2000, whilst the number of patients requiring representation has increased by around 30%; according to figures provided by the Tribunal Service. Furthermore a previous Law Society survey has shown that the average age of Panel members is middle age or above. Far fewer “young” entrants have been joining the Panel. Our members directly report to us that the reason for leaving this area of practice is the existing fee levels. The arbitrary proposals to reduce fees in this area of representation by a further 10% will certainly rapidly accelerate this process.

The implications of the 10% reduction have been clearly depicted by a very longstanding and experienced practitioner in East Anglia who, when indicating he would have to leave this area of work, said:

“This work is like being a minicab driver. You work Monday to Friday to cover your overheads: you make money that you can live off on Saturday. They now want to take away our Saturday”

Our Association has been received numerous responses from members who will now no longer be able to carry out this work. It should also be born in mind that this cut is on the back of a lack of any recent increase and ongoing inflation, results in real cuts of around 15% in the last three years already.

A 10% reduction is therefore very much more than a simply shaving a few pounds off the budget. It is frequently the profit margin on which our members survive. And, as has been pointed out to the Conservative party previously, many of our members operate in small specialist practices. They have nothing to buffer their work and will simply go to the wall; notwithstanding their longstanding expertise.

2.3. Judicial View of Mental Health Representation
The need for retaining such experience in the work we do has long been recognised by the judiciary.

At the time of the introduction contracting Mr. Justice Brooke in the year 2000 (now Lord Justice Brooke) in the case of R v Legal Aid Board ex parte Mackintosh and Duncan (2000) gave the view of the Court on that occasion:

“We are worried, however, that the Board (then the Legal Aid Board) has not yet appreciated how difficult Mental Health Law is, and how generally solicitors cannot pick up the expertise needed to serve the clients effectively, unless they have strong and practical grounding in this field of Law. We hope that the Board will now take urgent steps to identify the really skilled solicitors who are willing to serve their clients in this field at Legal Aid rates of pay ……………”.

He also commented:

“Reading the Report of a psychiatrist, identifying its areas of weakness, commissioning evidence and the appropriate expert challenge to it and representing a client at a Tribunal requires expert professional skills borne, as we have said, of education and practical experience. It is not like going down to the Magistrates Court as a Duty Solicitor, arduous though those duties are.”

Mr Stanley Burnton J. in KB & Others v MHRT [2003] made it clear that the Mental Health Review Tribunal is the most fundamentally important Tribunal in this country in that it deals with the liberty of the individual in circumstances where that liberty has been removed without having been sanctioned by a court.

“The issues before Mental Health Review Tribunals are probably the most important issues decided by any tribunals. The Tribunals make decisions as to the compulsory detention and treatment, and thus the liberty, of the individual. A wrong decision may lead on the one hand to the unnecessary detention of a patient, and, at the other extreme, to the release of a patient who is a danger to himself and may present a risk to the public. A patient will be the victim of a wrongful decision to detain him. Conversely, however, he may also suffer from a mistaken decision to direct his discharge.

The decisions of the Mental Health Review Tribunals are as intrinsically important as many of those of the Crown Court……”

We are aware of the grave continuing concerns held by the Tribunal Judiciary relating to the decline in the quality of representation of patients in recent years and understand that they are looking to see how such decline can be addressed. Their particular concern is the continuing decline in availability of Panel members in relation to the rising amount of Legal Representation required. This has been great acerbated by the effects of the Mental Health Act 2007 and the new Code of Practice attached to the Mental Health Act; coupled, of course, with the substantial decline in Panel Membership since 2000.

2.4. Concerns of Care Quality Commission
We certainly consider that there is a link between the decline in the quality of representation; the decline in panel membership and the previous imposition of the fixed fee scheme in Mental Health Tribunal work. Indeed the link between the fixed fee scheme and declining standards has been raised in the last three Mental Health Act Commission/Care Quality Commission reports (those for 2005-7, 2007-9 and 2009-10). The CQC has reiterated the MHAC’s call for an independent review of the effects of the revised fee system, with a particular focus on Tribunal representation. It is of great regret that no steps appear to have been taken to set up such an enquiry. A further reduction of fees will only greatly worsen the concerns already raised by the Commission.

2.5. Ministry of Justice Research
Recent research by the Ministry of Justice itself in July 2010: Court Experience of adults with Mental Health Conditions, Learning Disability and Limited Mental Capacity confirmed the vulnerability of our client group. In particular it concluded the following findings:

 Whilst across the board there was a range of awareness among legal representatives of the particular needs of this client group, legal representation was seen as a key support, particularly when the representative was experienced in working with this client group, providing ”a unique authority, perspective and understanding”;
 Fixed fees were seen to be a barrier to good quality advice for this client group who required more time spent on their case, for which the legal representatives would not get paid; and
 This client group had mixed success in accessing solicitors by telephone.

Again, a 10% cut, with its implications to specialists’ employment, appears to run directly counter to these findings.

2.6. Concerns of MIND
The Association has been contacted by the charity MIND. As you know this charity is frequently seen as the strongest voice for those suffering from a mental disorder. They are already aware of the research indicating a decline in the quality of representation and are greatly concerned as to the impact of the 10% reduction. We understand they are responding directly to your consultation.

2.7. Possible breach of the Disability Discrimination Act 1995
In the recent case of PIL & RMNJ Solicitors v Legal Services Commission (2010) the Court recognised there would be issues regarding detained patients with longstanding relationships with legal representatives. The Court was impressed particularly by medical evidence that the sudden breach of such relationships might well cause relapses in vulnerable patients’ mental health. The Court also noted that extensive psychiatric histories, including perhaps details of extreme abuse, would have to be re-counted at great length to new representatives.

In the scenario resulting from a 10% cutback this situation is likely to be replicated as a number of long established practitioners suddenly leave the field. Although, of course, it would not be clear what representatives, particularly Panel members, who would be available to take over this role.

2.8. Specialist Panel Membership Recognition
We have consistently argued for the need for good quality advice in the Mental Health category of law. We have in particular argued for recognition of membership of the Law Society’s specialist panel in this area, notwithstanding the decline in such membership since ten years ago. We feel that the failure of Government, to date, to link panel membership to fees has led to the decline in take up of the panel, with a knock-on effect on quality. We expressed concern about the imposition of the fixed fee scheme in 2008 given the effect we thought it would have. Again the 10% reduction in fees is a further leap in the wrong direction.

2.9. Financial Implications
Our estimate is that would the financial implications of retaining the 10% would be very small. Our estimate is that the cost of provision of our work is around 1.6% of the total legal aid budget. Immediate savings made might be in the region of £3 million pounds however, the ultimate cost would be very much higher. Once specialists are lost to this area it is very unlikely they will return. Nevertheless the UK’s obligation to provide this representation will remain. Ultimately, therefore, the Government might be faced with a much higher bill to re-establish this “core” service.

2.10. Proposals for savings:
 We consider that this process has already started because of more case management decisions following the 2008 Tribunal Rules. Adjournments have reduced over the last year.
 There should be a review of Schedule A1 Mental Capacity Act 2005. This provides a legal framework for the detention of those lacking capacity but who are not receiving treatment in hospital for mental disorder under the Mental Health Act 1983. The DOL Safeguards are cumbersome and unpopular with nearly all those who have to deal with them. The only appeal avenue is to the Court of Protection at considerable expense. Often, the case has to be heard in London, a long way from where the person subject to the DOLS (and their family and the professionals concerned) is based. DOLS cases are mainly still heard before the senior judiciary, with the effect that counsel is often relied upon. The costs are often many times in excess of the costs of even the most complex tribunal. The Safeguards could be replaced by amendments to the Guardianship scheme under the MHA 1983, with the Tribunal service dealing with appeals rather than the Court.
 Setting a limit on the hourly rate that NHS Trusts and other public bodies can spend on legal advice which is equivalent to that which is spent on advising detained citizens.

2.11. 10% Reduction – Conclusion
The Association is greatly disappointed that this blanket reduction has been proposed for our work with detained patients, notwithstanding earlier assurances given. Ongoing departure of specialists from the field, in direct contrast to a rise in demand for their services, will turn into a torrent should this reduction be implemented. Such a decision will run directly counter to senior judicial concern, coupled with those of the leading mental health charity MIND and the Care Quality Commission; not to mention research work carried out by the Ministry of Justice itself. Its implications may also be unlawful in terms of the Disability Discrimination Act.

Our members see ourselves as a front line service for our clients and very much hope that the Department and Central Government will re-think this 10% reduction for our members.

We would welcome the opportunity to expand on, or clarify, our concerns

Mental Health Lawyers Association 9th August 2011