Constitution of the Mental Health Lawyers Association
1. TITLE
1.1 The name of the association shall be the “Mental Health Lawyers Association” (The Association).
2. OBJECTS
2.1 The objects of the Association shall be to encourage and maintain the highest standard of preparation, representation and practice in relation to mental health and mental capacity law, to participate in discussions on developments in the areas of mental health and mental capacity law, and to represent the interests of members of the Association.
2.2 The Mental Health Lawyers Association is a non-profit organisation.
3. CONSTITUTION AND PARTICULARS OF OFFICERS
3.1 Membership of the Association shall be open to persons that meet the requirements of paragraphs 5.1 (Full membership) and 5.3 (Honorary and Associate membership) below. Honorary and Associate members will be able to attend meetings but have no voting rights and may not stand as Officers of the Association.
3.2 The Officers of the Association shall consist of:
(i) The President – Tam Gill
(ii) The Chair – Neil Cronin
(iii) The Vice-Chair – Kate Tyrrell
(iv) The Secretary – David McLaughlin
(v) The Treasurer – Shefik Osman
3.3 All the Officers and other representatives of the Committee shall be elected at the Annual General Meeting (or a Special General Meeting).
3.4 In the event of any office becoming vacant, the Committee may at its own discretion appoint one of its number to fill the vacancy for the remainder of the unexpired term of office or may convene a Special General Meeting for an election for the office for the remainder of the term of office.
4. COMMITTEE
4.1 The affairs of the Association shall be managed as it deems appropriate by a Committee of the Officers of the Association and elected representatives of not more than 15 members of the Association exclusive of the Officers of the Association. Any 5 present will form a quorum. The Committee may establish such sub-Committee as it deems appropriate to further the objects of the Association.
4.2 The Committee shall consist of:-
(i) The Officers who shall be elected from the representatives of the membership of the Association
(ii) Not more than 15 elected members of the Association.
(iii) Such other representatives as the Committee may from time to time co-opt to serve as co-opted members of the Committee in accordance with clause 4.4 thereof.
4.3 Subject to 4.4 below, at all meetings of the Committee, each Full member present shall have one vote; in case of equality, the Chairman shall have a casting vote.
4.4 The Committee may at its discretion co-opt representatives for a period expiring not later than the date of the next Annual General Meeting. The Committee may further at its discretion invite any person to its meetings as it may think fit as observer or to assist the Committee. Persons co-opted or invited as observers shall not be entitled to vote.
4.5 Nominations of candidates for election as officers of the Association and members of the Committee must be made in writing by another member of the Association and accompanied by the written consent of the candidate to serve if elected. They must be received by the secretary not later than the date of the Annual General Meeting or any adjournment thereof at which the election is to take place.
4.6 If the number of candidates so nominated exceeds the number of vacancies, a vote of the members of the Association present at the Annual General Meeting shall be by a show of hands. Each member shall have one vote for each vacancy.
4.7 The secretary shall where practicable give 14 days notice to the members of the Committee of any Committee meeting specifying the nature of the business to be transacted.
4.8 The Committee shall have power to nominate any member of the Association as a delegate to any professional body and to confer on such delegate voting powers on behalf of the Association.
4.9 The members of the Committee shall be jointly and severally liable for the conduct of the Association’s finances and shall be liable for any shortfall, misappropriation or other financial misconduct of whatsoever nature carried out by or on behalf of the Committee in the event that the Committee is shown to have acted with gross negligence or dishonesty.
4.10 The Committee shall be empowered to insure with an office of repute against any risks as it thinks fit.
4.11 Any Committee member or co-opted Committee member who fails to attend 1 out of 3 consecutive Committee meetings shall be removed from the Committee and precluded from standing for Committee membership in the next 12 month period (commencing from the election Committee members at the AGM of the MHLA). If there are extenuating circumstances, the decision whether to remove that member from the Committee shall be made by the Officers of the Committee affected, and their decision shall be final.
4.12 No more than 2 members of the same firm or practice shall sit on the Committee either as a member of the Committee or as a co-opted member of the Committee at any one time. A person shall be considered a member of a firm or practice for the purpose of this rule if he or she works for the firm or practice whether as partner, employee, consultant or under any other arrangement.
4.13 No more than 2 Associate members shall sit on the Committee at any one time.
5. MEMBERSHIP
Election
5.1 Persons eligible for Full membership of the Association shall be those persons who:
(a) have been approved to be members of the Law Society’s Mental Health or Mental Capacity (Welfare) Accreditation Schemes or are barristers who in the view of the Committee meet an equivalent standard (by attendance at a relevant two-day course and/or by experience in practice); or
(b) undertake mental capacity law matters under a Legal Aid Agency contract and practice under supervisory criteria in mental capacity law as published by the Association, or are barristers who in the view of the Committee meet an equivalent standard (by attendance at a relevant two-day course and/or by experience in practice) or
(c) are actively seeking membership of the above-mentioned Law Society Accreditation Schemes. Such persons must have completed the mandatory approved two-day course with one of the Law Society approved course providers.
5.2 A member shall be deemed to be a member of the Association on receipt of the appropriate subscription fee. The Committee may refuse any application for membership without giving any reason to the unsuccessful candidate.
5.3 (a) Any person whether or not defined by paragraph 5.1 hereof may be elected as an Honorary Member of the Association by the Committee.
(b) Any lawyer who is not eligible for Full membership but who subscribes to the Objects of the Association may, subject to paragraph 5.2, be made an Associate member by the Committee.
5.4 The Secretary shall maintain a full register of members.
Subscription
5.5 The annual subscription of each member other than an Honorary member shall be either the current subscription or such other sums as shall be specified by the Committee on the recommendation of the Treasurer and notified to members at the Annual General Meeting. A “member firm” is a firm which has obtained Association membership for those members of the firm (as defined in paragraph 4.12) who are eligible.
5.6 The first annual subscription shall be payable within 28 days from January 1st in each calendar year. No refund of any subscription shall be payable on the resignation or expulsion of a member.
Expulsion
5.7 The Committee may expel from membership of the Association any member whose subscription is more than 3 months in arrears. Notice shall be given to any such member giving the member or member firm 28 days from the date of the notice to pay the subscription on penalty of exclusion from the membership.
5.8 If any member or member firm shall be guilty of conduct which in the opinion of the Committee renders him, her or it unfit to be a member of the Association, the Committee may recommend the removal of the firm and/or member from the list of members and the Secretary shall so inform him, her or it within 7 days. If the said member or member firm notifies the Secretary in response to such information that he, she or it wishes to address the Committee on the merits of its recommendation, the Committee shall meet and afford him, her or it the opportunity to make representations. The Committee will reconsider the matter and make a further recommendation to reverse its earlier recommendation or not as it sees fit and the Secretary shall inform the member within 7 days. In an appropriate case removal of the name of the member or firm from the list of members shall occur 21 days after the date on which the Committee informs the Secretary of any recommendation or final recommendation as the case may be.
5.9 The Committee shall not be obliged to give any further explanation for the expulsion of the member concerned.
Resignation
5.10 Any person or member firm may resign from the Association by giving notice in writing to the Secretary at any time. On receipt of such notice by the Secretary, the member or firm shall cease to be a member but no refund of it or any part of the current years subscription already paid shall be made.
6. MEETINGS OF THE ASSOCIATION
6.1 Unless the Committee otherwise decides, the Annual General Meeting shall be held during September, October or November as appropriate for each calendar year. The Committee may, whenever it thinks fit and shall within 28 days of receipt of a requisition in writing signed by not less than 10 members of the Association, convene a Special General Meeting to consider special business and any requisition shall express the object of the meeting proposed to be called and shall be delivered to the Secretary.
6.2 21 days’ notice at least of every General Meeting specifying the place, day and hour of the meeting and in the case of special business the general nature of such business shall be given to each member of the Association. Any notice required to be served under these rules shall be deemed to be duly served by sending the same by pre-paid letter or by document exchange service or electronically to the usual or last known place of residence or practice or document exchange box of the member as recorded in the Association’s records.
6.3 At any General Meeting 7 of the members shall form a quorum and if there shall not be a quorum after a period of 15 minutes after the time appointed for the meeting, the members present (so long as they represent 3 or more firms) shall form a quorum.
6.4 The Chairman or in his or her absence the Vice-Chairman shall preside as Chairman at every General Meeting of the Association. If neither of these officers be present, members present shall choose one of their number to be Chairman of such meeting.
6.5 Any resolution to be considered at any meeting called or proceeding in the manner above specified shall, if not included in the formal agenda circulated by the secretary, be in writing signed by the proposer and seconder who shall be members of the Association and delivered to the Secretary at least 28 days prior to the day and hour of the meeting. The secretary shall despatch details of such resolution to the membership within 14 days of receipt of it in the proper form.
6.6 The Committee may, if it thinks fit, make provision for postal or proxy voting for all or specific General Meetings. Any vote received by post or proxy in the form provided for in the rules shall be accepted and treated as though the member had attended the meeting and voted personally.
7. ACCOUNTS
7.1 The Committee shall cause to be kept true accounts of the monies received and expended for and on account of the Association and of the assets and liabilities of the Association. The accounts shall be closed on 31st December in every year and a cash account showing receipts and expenditure and a balance sheet containing a summary of the assets and liabilities of the Association on such 31st December shall be made out and a copy of such balance sheet shall be given to every member on or before the date of the Annual General Meeting following the closing of the accounts.
7.2 The accounts are to be audited and the results presented at the Annual General Meeting.
8. ALTERATION OF RULES
8.1 The rules of the Association may from time to time be altered or new rules made by the General Meeting or adjournment thereof is passed by two thirds of those members present and voting provided that particulars of any proposed alteration or new rules are specified in the notice convening such General Meeting.
9. AIDS TO CONSTRUCTION
9.1 In the construction of these rules unless the contrary intention appears words in the singular shall include the plural and words in the plural shall include the singular.
9.2 Save for questions arising at any General Meeting of the Association when the view of the majority of members present shall prevail, the Committee shall be the sole authority for the interpretation of these rules and the decision of the Committee upon any question of interpretation of these rules shall be final and binding on the members.
10. INDEMNITY OF OFFICERS AND COMMITTEE
10.1 The Association shall indemnify the officers and Committee of the Association from and against all claims, liabilities and demands in respect of all acts done on behalf of the Association in good faith.
11. DISSOLUTION
11.1 If the committee decides that it is necessary to close down the Association it may call a Special General Meeting to do so, giving twenty-one days’ notice. A two-thirds majority of those present and voting shall be required to confirm the proposal to dissolve.
11.2 The members of the Association may at any time before, and in expectation of, its dissolution resolve that any net assets of the Association after all its debts and liabilities have been paid, or provision has been made for them, shall on or before the dissolution of the Association be applied or transferred in any of the following ways:
11.2.1 directly for the Objects;
11.2.2 by transfer to any not-for-profit organisation or organisations with purposes similar to the Objects; or
11.2.3 to any not-for-profit organisation or organisations for use for particular purposes that fall within the Objects.
11.3 Subject to any such resolution of the members of the Association, the Committee of the Association may at any time before and in expectation of, its dissolution resolve that any net assets of the Association after all its debts and liabilities have been paid, or provision has been made for them, shall on dissolution of the Association be applied or transferred:
11.3.1 directly for the Objects;
11.3.2 by transfer to any not-for-profit organisation or organisations for purposes similar to the Objects; or
11.3.3 to any not-for-profit or organisation or organisations for use for particular purposes that fall within the Objects.
11.4 In no circumstances shall the net assets of the Association be paid to or distributed among the members of the Association.
11.5 The Association’s reserves policy shall make provision, in the event of insolvency, for all closing-down debts and liabilities to be paid from the minimum operating reserves.
Standards
The following are the standards to be met by a mental capacity law supervisor (referred to in clause 5.1(b) of the constitution):
1. 350 hours of casework in respect of proceedings in the Court of Protection in the last 12 months (we do not consider that it is appropriate at this stage to specify numbers of cases as one MCA case can take several hundred hours).
2. Of the 350 hours of casework, at least 235 hours must be personal casework and a maximum of 60 hours may be file reviews and supervision, with external training delivery at a maximum of 60 hours, research etc at a maximum of 60 hours, and other supervision at a maximum of 115 hours (this is to take account of the need to ensure that the standard can be achieved by suppliers over time with more supervision in the initial stages).
3. Ability to recognise the following types of cases or case issues:
– A dispute as to welfare, property and affairs or serious medical treatment where the COP has jurisdiction
– deprivation of liberty and compliance with the ECHR
– need for an IMCA
– need for community care advice
– the circumstances in which a Deputy may be appointed
– the interface between MCA proceedings and judicial review
– the interface between the MCA and the Mental Health Act 1983
– the nature and requirements of LPAs, and advance decisions
4. Legal training – attendance on at least one recognised course (not less than 5 hours CPD) regarding welfare applications in the Court of Protection, covering also deprivation of liberty issues under the Mental Capacity Act 2005.
5. Access to the following:
– Mental Capacity Act 2005
– Code of Practice
– Court of Protection Rules
– Deprivation of Liberty Code of Practice
– Practice Directions
– An up to date text on the Mental Capacity Act 2005 including the latest DoL provisions with an analysis
6. Access to a medical reference publication regarding categorisation of mental disorder.
7. Access to judgments in the Court of Protection and cases concerning financial applications as well as welfare issues.