issue 10, 20 November 2011 (available here).
Legal protection for people diagnosed with mental disorder and subject to detention and
compulsory treatment was seen as a key feature for those drafting the European
Convention on Human Rights (“ECHR”). In the subsequent interpretation of the enacting
of the Convention, the Courts have been clear that to be effective these rights require
frequent legal review and legal representation Megyeri v Germany 13770/88 (1992)
ECHR 49.
The work of solicitors in this field was described by Lord Justice Brook in the case of R v
Legal Aid Board ex parte Mackintosh Duncan (2000) CO/4807/99 :
“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.”
In England and Wales the legal aid system as provided under contract by private firms of
solicitors was adapted to provide most of the required legal representation with legal aid
made available free for those detained in hospital. Legal Aid for such work has, however,
been increasingly constrained particularly in response to an avalanche of new criminal
legislation, with a contracting regime of fixed fees. The very recent arbitrary reduction of
10% in fees makes the provision of legal aid considerably more difficult; and, until very
recently, the Legal Services Commission (LSC) system of matter starts limited the work
that some firms could carry out in certain areas.
However for those solicitors maintaining this work there are a key series of tasks which
clients should still expect from their representative.
Panel membership
First, solicitors conducting this work should be members of the Law Society’s Mental
Health Tribunal Panel, although one panel member can supervise up to six staff. Indeed
for financial purposes, caseworkers (that is lawyers who are not Panel Members) are
frequently conducting this work under supervision. Panel membership requirements are
currently under review, however at present assessment of both practical and legal
knowledge is required in both written assessment and in interview.
Membership is
reassessed every three years. Effectively a requirement of continued practice in the field
is required for a renewal of membership to be feasible.
Membership of the Panel should guarantee a minimum quality of representation,
although it is no reason for complacency; and regrettably a small number of very poor
practices have been referred to the Law Society, Solicitors Regulation Authority, LSC
and the Mental Health Lawyers Association (“MHLA”). Proper preparation is essential in
every case. Regrettably there are now no current academic works covering necessary
preparation in this area of law. The most recent was the exceptional book written by
Professor Anselm Eldergill, Mental Health Review Tribunals: Law and Procedure
published by Sweet and Maxwell in 1997. A free copy is available to access at the
invaluable website www.mentalhealthlaw.co.uk. However, the recently updated LSC
Peer Review Guide Improving Quality, to be found on the LSC website gives a clear
indication of the steps and consideration that lawyers carrying out this preparation
should frequently take.
Mental health tribunal preparation
Every mental health tribunal case requires proper preparation. This may sound obvious.
However there are particular demands in mental health tribunal cases. In most other
legal cases clients can give coherent instructions on which to start preparation. In mental
health cases this does not always happen, particularly when clients’ mental states, and
therefore ability to provide instructions, may vary widely from one week to another; partly
because, perhaps, the developments of their illness and partly due to the effect of
powerful antipsychotic medication. This may, in turn, affect their capacity to provide
instructions; however the capacity tests for such instructions is low and this is not an
area in which the Official Solicitor intervenes (one reason for the establishment of the
specialist panel). For further discussion of this issue see paragraphs 4 and 5 of The Law
Society’s Practice Note Representation Before Mental Health Tribunals 2011 (“The
Practice Note”).
There should always be adequate time allowed for a prompt initial visit which should
identify the client’s instructions and advise him or her of the legal options, together with a
timetable for action. Significantly meetings with clients are covered by legal privilege
which cannot be broken accept in very rare situations; these are explored in paragraph 5
of the Practice Note.
Subsequently the Tribunal should be informed that the solicitor is acting and any
application lodged if it has not already been. At the same time the hospital should be
informed of the application and that the solicitor is acting. An application should also be
made for access to the client’s medical records and contact made with the client’s
Nearest Relative listed under s26 Mental Health Act 1983 (“MHA”) if this is appropriate
and/or requested by the client. In addition, enquiries should be made as to whether the
client has a regular Independent Mental Health Advocate assisting and whether liaison
and communication would help the client’s application.
A request should also normally be made for details of aftercare planning meetings to the
Responsible Clinician. Such meetings should be held in accordance with paragraph 27.7
MHA Code of Practice and there should at least be a plan “in embryo” for aftercare and
perhaps accommodation arrangements for discharge. The lawyer may well want to
attend such meetings.
The next step will usually be monitoring that Tribunal reports arrive within the time limits
set down in Practice Direction of 30th October 2008. The reports will usually comprise
the Medical Report, the Social Supervisor’s Report and that of the Nursing team. Again it
is important to allow time for full instructions from the client and consider the next steps
in preparation. This might include considering important inaccuracies in reports and
investigating them in the client’s medical records.
EXAMPLE
In my early days of carrying out this work, I represented a client who had been
transferred on s3 MHA to a private secure unit in Yorkshire far away from her home in
east London. She had been transferred on a number of occasions, but was seen to
represent a risk to others as she would not admit to an incident involving the use of a
gun on the ward of a London hospital where she was said to have threatened staff and
patients. Her lack of recognition of this fact was seen as confirmation that she was both
treatment-resistant and a threat to others. As is still frequently the practice medical
records do not travel with the patient and staff at the private hospital accepted all that
was said in old reports. However, following her instructions I finally tracked down the
nursing records covering the incident. The client’s nephew had visited her on a semiopen
ward and played with a toy gun with the client. Whilst staff felt this play had
become mildly disruptive that was the end of incident. In a subsequent report covering
the event the description “toy” was left out, but otherwise the incident was described
accurately. Subsequent report writers, clearly never examining the source records,
started to introduce alarm into their reports and, each report building on another,
increased concern and risk accordingly. Regrettably the client had lost contact with her
family members who might have corroborated her account.
When the Responsible Medical Officer (as he then was) (Editor’s note: now known as
the Responsible Clinician) was presented with this first hand evidence a few days
before the client’s Tribunal he was both embarrassed and apologetic to the client. He
subsequently discharged her from s3 MHA shortly before the Tribunal hearing
commenced.
This problem was recognised by Munby J at paragraph 129 R (AN) v MHRT (2005)
EWCA Civ 1605″…….The Tribunal must be alert to the well-known problem that constant
repetition in ‘official’ reports or statements may, in the ‘official’ mind, turn into established
fact something which rigorous forensic investigation shows is in truth nothing more than
‘institutional folk-lore’ with no secure foundation in either recorded or provable fact.”
In any event medical records should generally be examined in addition to considering
reports. Key events favourable to the client may be missed from official reports; or
alternatively a full account of incidents or events will frequently assist the client’s case.
Medical records are often the most reliable source of information in s2 MHA Tribunal
cases and always provide a more updated picture than the latest report. They are of
course examined by the Medical Member shortly before the Tribunal hearing, and
therefore not to examine them would put the client at a disadvantage in relation both to
the clinical team and Tribunal members.
Following consideration of the Tribunal reports with the client there should then be a
discussion with the client if any independent evidence is required. Guidance on this is
given in the LSC’s “Improving Practice”. Such reports can properly be obtained under
legal aid thereby acknowledging the “equality of arms” provisions of the ECHR. An
independent report could include obtaining the report of an independent consultant
psychiatrist to counter the expert evidence of the Responsible Clinician supporting
continued detention. Other independent experts instructed could include an independent
social worker, particularly if the local social services department has not provided
sufficient aftercare planning details, or details of supported accommodation. Other
experts might be psychologists or even occupational therapists.
Independent reports, with very limited exceptions, are covered by privilege. So if the
report does not support the patient’s application, the reports do not have to be served. If
the reports do support the patient’s application, consideration can be given for them to
attend to give oral evidence.
Representation at the Tribunal can generally be carried out by any employee of a firm or
organisation with an LSC contract with sufficient expertise, except in High Security
Hospitals, as long as they are supervised by a Tribunal Panel Member. However, at
High Security Hospitals only panel members may carry out such advocacy. There is
possibility that in future contracts only panel members will be able to carry out advocacy
under a legal aid contract.
If the Tribunal has evidence before it which the Responsible Authority thinks would
cause serious harm to the patient or others, it can try to prevent this from being
disclosed to the patient. A legal representative, however, has the right to consider such
evidence under the provisions of Rule 14 of the Tribunal Procedure Rules 2008 (SI 2008
No 2699) and argue for its disclosure. If the patient is not legally represented this case
would not be put.
During the hearing the legal representative will cross examine the professional
witnesses and usually assist the patient with his or her evidence. At the end of the
hearing the representative will present submissions as to why the statutory basis for
discharge has been met (assuming these are the patient’s instructions).
If the Tribunal does not discharge the patient the solicitor should discuss the position
with the patient and especially consider if the decision is unlawful. If appropriate the
patients should be advised to request the First Tier Tribunal (Mental Health Review
Tribunal in Wales – Editor’s note) to review its decision and if necessary make an
application to the Upper Tribunal. Subsequently counsel may be instructed for any
appeal hearing there. The role of the Upper Tribunal has in many respects replaced the
Administrative Court in this area of public law and is a rapidly developing area of
jurisdiction.
Aftercare
In addition to Tribunal work, mental health solicitors have a range of other critical areas
on which to advise and represent clients.
Of particular significance at the moment is that of aftercare, including those eligible to
s117 MHA support on discharge. Many readers will be aware that s117 has recently
been subject to further scrutiny in cases such as R (On the application of Mwanza) v
Greenwich LBC [2010] EWHC 1462 (Admin). What is clear is that a number of local
authorities are taking abrupt and unlawful steps to curtail appropriate support as part of
the sudden need to save money. Mental health solicitors have a critical role here in
challenging such steps on behalf of these clients who otherwise might even face a
lifethreatening collapse in support. Here Independent Mental Health Advocates also have a
vital role to play in obtaining expert legal assistance for their clients as frequently such
clients have no access to specialist solicitors. It is encouraging to see such partnerships
working in at least some cases, and I have personally been involved in a number of
these since April of this year. However, this must surely be hardly the tip of the iceberg.
A list of available solicitors is available on the Mental Health Lawyers Association site
(www.mhla.co.uk) and Mental Health Tribunal Panel members on the Law Society site
(www.lawsociety.org.uk.)
Capacity cases
Capacity cases, especially those involving Deprivation of Liberty (DoLs), are another
area where mental health solicitors have a core role with respect to Article 5 of the
European Convention on Human Rights (ECHR). Here Independent Mental Capacity
Advocates have very important responsibilities in highlighting to patients, and their
families, their rights to access a court. Many readers will be aware of the significant case
of Re Steven Neary; LB Hillingdon v Steven Neary (2011) EWHC 1377 (COP) which
reinforced the role of the court and strongly emphasised the duty of Local Authorities (or
Health Authorities) to bring such cases themselves to court where they consider it
appropriate. It is of considerable concern that far more cases have not come to the court
subsequent to this judgment.
Solicitors who conduct this work are listed on the Mental Health Lawyers association
(MHLA) website: www.mhla.co.uk.
Treatment cases
Solicitors still bring appropriate cases to challenge compulsory treatment. However the
courts are frequently not sympathetic and tests to challenge procedure and medical
necessity are often difficult R (B) v Dr. SS] [2005] EWHC 1936 (Admin).
Conclusion
The role of a mental health solicitor is arguably never more challenging than it has been
today. This is in particular with clients’ situations evolving rapidly either under financial
pressure and/or case law developments. Tribunal work, with over 25,000 applications a
year, and with such clients subject to detention and compulsory treatment, remains an
undiluted challenge. However a substantial, but unknown, number of patients subject to
Deprivation of Liberty under the Mental Capacity Act 2005 are frequently not even
accessing legal advice
In these demanding times, it is essential that specialist solicitors in this field work closely
with advocates covering both mental health and capacity work to identify and assist
some of the most vulnerable in our society.
Richard Charlton
Head Mental Health Department Creighton & Partners
Chair Mental Health Lawyers association
[Note from Mind:] We would like to express our thanks to Richard Charlton for his thoughts on this
important subject. The views expressed in this article are his own and do not
necessarily reflect Mind’s policy. Further information on the matters raised here can be
obtained from the Mental Health Lawyers Association.