Reforming Legal Aid
Crispin Passmore, Director of the Community Legal Service, responds to Richard Charlton’s previous Adjust article on the impact of legal aid proposals on mental health representation.
I welcome the chance to respond to Richard Charlton’s article and am glad that despite his reservations, he (like many of his colleagues) has bid for additional work. Providing this additional legal representation for some of the most vulnerable clients serviced under legal aid continues to be vitally important.
Our reform programme is designed to maximise people’s access to legal aid and ensure that we can continue run a publicly funded system within our £2 billion budget. Ignoring spiralling costs and neglecting to change the system would only succeed in hurting the most vulnerable of clients in the long-run. Indeed, the harsh alternative to making sometimes difficult and unpopular changes would be to cut the scope of legal aid or restrict people’s eligibility.
The knock-on effects of keeping the status quo should not be overlooked. Without the improved cost control and accountability that our reforms - specifically our new fixed fee schemes - will achieve, we would be in a far weaker position to lobby for any additional funding required in the future, for instance, as a result of changes to the law and related judicial proceedings.
Introducing fixed fees
From 1 January, we implemented a new fixed fees scheme for all legal aid mental health cases not funded through a certificate, the exception being work on behalf of victims, as defined by the Domestic Violence, Crime and Victims Act 2004 and amended by the Mental Health Act 2007.
We consulted widely on both the fees and the specification (which sets out how the fees are to be applied in practice) before committing to the current scheme. As a result of the feedback we received, we made several significant concessions to our original proposals and delayed implementation to give practitioners’ time to understand and adjust to the changes.
The scheme’s creators were given the challenging task of developing fees that were fair to practitioners, clients and the taxpayer. As such, the fees don’t represent a cut in expenditure or services - our file review enabled us to take a representative sample of all the cases we fund so that we could set the fees at cost-neutral levels. We also took measures to guarantee that our calculations were not skewed by a particular provider or other variables.
Broadly speaking, the new scheme pays all mental health practitioners the same amount for similar cases and we anticipate that it will have a positive financial impact on the majority of providers. To elaborate, if practitioners continue to do the same work for the same kinds of client, we expect 75% of them to increase their income compared to what they would have received under their previous payment scheme. We view the new fees as a positive step considering the previous differences in the amount that different practitioners received for similar cases.
To simply translate fixed fees into hourly rates is to misunderstand the principle of fixed fees. Practitioners are unlikely to carry out cases where the relevant fixed fee or combination of fees mirrors exactly the cost of the case. The scheme was never intended to do this. It is more akin to a block contract, i.e. a contract payment that covers a group of cases and thus allows the solicitor to exercise their professional judgment about how much work to do on each case at each stage.
We anticipate that many providers will change at least some aspects of their practice to make them more profitable. For instance, we hope that many will offer more services locally to their clients, improving access and reducing travel times and costs. In the long-term, this will give them a competitive edge in any future, market-based system.
Representing clients at tribunals
We agree with those providers who, in their response to our consultation on the mental health fee scheme, expressed the view that client representation should be remunerated specifically and separately.
Most cases we fund relate to Mental Health Review Tribunal (MHRT) work. Therefore, the tribunal system was a central consideration when developing the new fees; as was the ability for practitioners to undertake other kinds of work for clients, including new work flowing from the Mental Capacity Act 2005. Our Level 3 fee pays specifically for representation at the MHRT and again is based on the average cost – calculated using representative case files - of representing clients at tribunals.
Forensic and exceptional cases
Opinion on whether we should include forensic cases within the new fee scheme was split. After much consideration, we finally took the view that while some forensic cases are complicated, lengthy and costly, the same is true of other mental health cases. Therefore, we included them in the scheme, incorporating the average cost of forensic cases into our final fee levels.
In addition, we have made provision for exceptionally complex or lengthy cases by excluding them from the scheme. Cases will be considered exceptional and will continue to be paid by the hour if they exceed three times the new fees payable.
At our recent mental health practitioner workshops, we dedicated considerable time to discussing the Legal Services Commission’s (LSC) assessment of costs for exceptional cases following concerns that we would reduce claims and leave practitioners out of pocket for work carried out. To reflect what was said, we have drafted guidance which is now available on our website.
In addition, our specialist Mental Health Unit now undertakes the majority of this assessment work and are well placed to ensure that fair and consistent decisions are made on exceptional cases. They are keen to demonstrate that their evaluation is open and fair and welcome feedback or calls on specific queries.
Going beyond our statutory duties
We recognise the importance of attending Managers’ Reviews and feel that this should be reflected in our funding. While they are not the judicial forum that the MHRT is, nor part of our statutory priorities, evidence suggests that they result in discharge from section (roughly half as frequently as tribunal hearings). We also know that they can be just as important for clients and valuable for legal representatives. Therefore, all the money we have spent on Managers’ Reviews has been reinvested in the relevant fees.
Early, proportionate resolution of legal problems is extremely important for all clients, detained or otherwise, and usually represents value for money. We have chosen to ensure that practitioners can still take on work for clients for whom there are no prospective tribunal proceedings, whether these people are formally detained or voluntary patients, resident in hospital or in the community. This falls outside our obligations but our tighter controls on funding make it affordable.
Throughout the development of the Mental Capacity Act 2005 and the Mental Health Act 2007, we worked with other Government departments to predict and provide for the likely impacts of new legislation on clients, practitioners and legal aid funding. One of the outcomes is the Department of Health’s commitment to meeting the legal aid costs arising from the implementation of the Mental Health Act, including those relating to the potential increase in MHRT hearings as a result of the new Deprivation of Liberty safeguards. While this does not in itself guarantee access, it is certainly a necessary step.
The tribunal system itself is where we most obviously must hold our partners to account for the impacts of inefficiencies and errors. We are improving our approach to identifying and resolving issues of concern in discussion with the MHRT Secretariat. We look forward to being represented on the Council’s Stakeholder Group for Mental Health, and would welcome Council representation on our own advisory group.
Quality services for clients
We are proud of the fact that we contract with so many high quality solicitors who are committed to providing an excellent service. Quality is clearly of critical importance, however, we have found no correlation between the amount of money spent on a case and the quality of the work done.
We are confident that graduated fees won’t lead to declining standards of representation for the reasons already outlined – the new fee levels have been carefully calculated using representative data and are specific to the work undertaken at each level. In fact, putting the best lawyer on a case will be more profitable for firms who have long argued that those with greatest experience complete cases more quickly because they identify issues more quickly and use their knowledge so well.
This is a gradual programme of reform
We look forward to continuing our discussions on potential reforms to mental health legal services with: the Mental Health Lawyers’ Association; The Law Society; members of our external advisory group which includes practitioners and service users, mental health interest groups and health professionals; and, of course, practitioners.
In January, I wrote to Des Hudson, Chief Executive of The Law Society, to ask him to share with us any feedback on waste in the legal aid system gathered through the Society’s online survey launched last year. I extend a similar invitation to Mr Charlton so that we can learn from relevant feedback from the Mental Health Lawyers’ Association’s latest survey of its members.
We will also keep access to services under constant review and should any problems arise, we will take swift action. This may include tendering for additional services in specific areas to attract new service providers, as we did last Autumn or paying supplementary remote travel payments for cases where clients are resident at specific hospitals.