Impact of Legal Aid Proposals on Mental Health Representation
Richard Charlton, Chair of the Mental Health Lawyers Association, talks to Adjust about the impact of legal aid proposals on mental health representation.
Introduction
1. The Legal Services Commission finally announced the rates for remuneration in legal aid work on Friday 22nd June 2007, around six months after practitioners had been told to be ready for the announcement of the new rates.
2. Despite lengthy representations from the Mental Health Lawyers Association (“MHLA”), the Law Society, the Legal Aid Practitioners Group, MIND and individual practitioners, a “graduated fee” system has been imposed on the provision of legal services in this area, in particular the representation of clients detained under the Mental Health Act exercising their statutory rights to a Tribunal. The implications are of greatly declining standards of representation in all areas for those suffering from mental health problems and a collapse in representation completely in other parts of the country.
3. Essentially the proposed “fees”, which would seem closer to “fixed” rather than “graduated” fees, provide a standard rate of £791 for a total of all work from initial instructions to taking full instructions, examining medical records and attending at the hearing and subsequently explaining the written decision and its implications. The starting point is that the same sum of money would be paid to lawyers representing “short-term” patients detained only for seven days under Section 2 of the Mental Health Act as for cases involving patients sent by the Court for detention without limit of time, with very lengthy reports and perhaps conflicting psychiatric history.
The new proposals
Initial Instructions
4. At the rate currently equivalent for those payable to London lawyers (those outside London are paid slightly less) less than two and a half hours (£140) are allowed for:
- Travelling out to the detained client;
- Initial meeting with the client (possibly distressed) to discuss reasons for detention and take instructions;
- Travelling back to the office;
- Sending out initial correspondence, including application to the MHRT.
“Preparation and negotiation”
5. This includes 5 and a half hours rate equivalent (£340) available for:
- studying all medical records (independent peer review guidance is that this should be done twice);
- considering expert reports - including earlier reports for clients with a lengthy psychiatric history;
- travelling to and from the detained client on several occasions;
- waiting to obtain access (requiring increased time in a number of secure units);
- discussing all evidence with the client, including expert reports prepared for the MHRT (peer review guidance is that this should done usually on a separate occasion, before the MHRT, to allow instructions to be taken, and enquiries to be made, to, for example, challenge inaccuracies in reports in accordance with caselaw). A complicating factor is the mental state of the client frequently changes during this process, partly due to the response to powerful anti-psychotic medication. Thus a client who might not have wanted to discuss reports earlier will then contact his lawyer to say he now wishes to discuss them. Reports prepared by busy, and perhaps junior staff are furthermore frequently inadequate and do not meet the standards required by the MHRT;
- considering and if necessary instructing independent experts;
- attending pre-discharge planning meetings, especially when aftercare or accommodation is an issue, as this will frequently concern the MHRT;
- attending and preparing for hospital managers reviews of section;
- interviewing witnesses (for example family members). This can be especially important in civil sections where the Nearest Relative (defined under s29 of the Mental Health Act) has the power of discharge from section in many instances, as well as the right to make their own application;
- preparing for the hearing itself.
“Representation”
6. At around 5 hours (£311) which includes:
- travelling out to the MHRT venue, and attending the perhaps very anxious client;
- final review of the medical records (this to coincide with the time the Medical Member of the Tribunal examines such records);
- attending the hearing, representing the client and discussing the immediate announced decision with the client;
- returning to see the client to explain the legal written reasons for the Tribunal’s decision;
- It also includes follow up work such as assisting the client with any recommendation that the MHRT might have, for example that the client is placed in the incorrect unit and requires a transfer. In addition it apparently includes all work and advice around proper aftercare provision arising from the Tribunal decision to discharge. Such a decision might have been delayed for such aftercare to be put in place.
“Adjournment”
7. At around 2 hours work (this is additional to the £791), which covers:
- considering addendum reports and re-instructing any independent experts;
- travelling out to see the client and back (perhaps this will have to be done twice);
- examining the latest medical records;
- attending the resumed hearing and explaining any decision to the client.
“Exceptional Fees”
8. The Commission has made much of the “escape clause” which has been reduced. Thus if total fees in a case are more than “three times”, (i.e. £791 x 3) then the “old rate” (that is the 2001 hourly rate) will be paid. However, all such files will go the Commission for individual “re-assessment.” Thus if a case is, according to a practitioner, four times the fee, at say £3,000, however the Commission consider only £2,200 worth of work is necessary, the lawyer’s payment is then reduced back to £791. Furthermore, mental health practitioners have little confidence in such assessments, and the MHLA had to issue judicial review proceedings to challenge disastrous assessments last year. Almost all were then resolved in members’ favour after considerable expenditure of time and financial loss.
Background
9. The MHLA represents around 80% of those practitioners who represent clients before the MHRT. A condition of membership is that members are either members of the Law Society’s Mental Health Review Tribunal Panel, or are seeking membership. This Panel was the first such specialist Panel set up by the Law Society, reflecting the importance of such membership both legally and conduct terms in dealing with such vulnerable clients. Indeed this work has been described by the Courts. At the time of the introduction of contracting by the Commission in the year 2000, 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.”
10. 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……”
11. Since the commencement of contracting in 2000, the number of Mental Health Review Tribunal Panel members has fallen by around 25% (source - Law Society Panel administration). In additional the lack of a general increase in payment rates since 2001 has meant that, according to the Retail Price Index, the decline in the real value of hourly rates has been 32%. This decline is probably understated given the rate of increases in national insurance contributions and business taxes.
12. The LSC has indicated that the number of matter starts have continued to increase, notwithstanding the departure of experienced practitioners from this area of work, although recent indications are that this has now stopped. The MHLA’s view is that these figures have been caused by the following:
- The LSC has changed its interpretation of contract specifications so that the definition of one matter in certain circumstances has now become two matters, without any additional work taking place;
- The introduction of the previous scheme of Tailored Fixed Fees for some practitioners has provided an incentive to commence “new matters”, where perhaps one file would have covered the work previously; as such firms are paid a standard fee per matter based on their previous average costs per matter;
- The number of MHRT hearings has increased by around 2% a year and practitioners have stretched themselves to ensure that no one has gone unrepresented.
13. The Commission have indicated that they have based the current rates on a review of closed files. This has been challenged by members who have indicated the Commission has chosen ones they know are the cheapest. Statistically the figures appear incorrect, perhaps confusing different kinds of mental health cases based on ambiguous, or incorrectly applied, reporting codes. Whatever is the basis, it is clear that the figures will not allow lawyers to do the work required, and according to peer review requirements, in the vast majority of cases.
Implications
Representation collapse
14. The proposals will rapidly accelerate the departure of experienced practitioners from the field to the point where there will be a complete collapse of representation in some parts, if not large parts, of the country. The Commission seem aware of this prospect by raising the prospect of competitive tendering for those areas without representation. However, even here lawyers are necessary to cover the work. The only possible scenario where the “match all” fees will fit is perhaps a “short term” 28 day section 2 MHRT case, where the hearing will be held within 7 days of the application.
15. One sinister and discriminatory suggestion is that the Commission is quietly happy to allow a veneer of representation (which they must to comply with the European Convention on Human Rights) whilst in practice “paralegals” doing the work are untrained and unqualified, perhaps even with the quiet thought “they are all mad so they will not know the difference”.
16. It is of great concern that the Commission’s own quality assessment of the work in mental health, “peer review”, is only at a very early stage of assessing the existing quality of the work. There is therefore no measure of the existing quality of the work in this area of law upon which to base decisions.
17. The payments allowed by the Commission do not allow for work to be completed in almost all situations according to their own required standards set down in “peer review” guidance “Mental Health - Improving Quality”. Obtaining grades 1, 2 or 3 (out of 5) in peer review are necessary to continue in practice under public funding; indeed grades 1 or 2 are required to become a future “preferred supplier.” Such guidance advises lawyers to allow sufficient time, including sufficient visits, to see clients, and to take a whole series of preparatory steps including examination of perhaps extensive medical records and complex reports, including earlier reports detailing earlier issues regarding previous episodes of illness, before an MHRT. Indeed practitioners will usually find themselves facing an impossible situation, indeed a contradictory and “irrational” one, with the requirements set down in this guidance on the one hand, and payments available to do the work on the other.
Tribunal Crisis
18. The Mental Health Review Tribunal is in a state of crisis. It is seen as the number one priority for improvement by the Ministry of Justice and the Tribunals Service. It has the lowest satisfaction rates (between 9 and 18% - as against a target of around 86%) of all Tribunals; with administrative difficulties frequently leading to adjournments or listing mistakes, with reports frequently late, applications frequently lost and telephones unanswered (source MHRT stakeholder survey 2006). Practitioners pay heavily in time for these problems at present (with travel and waiting always providing the lowest rates) however in the future they will also be expected to pay for them entirely. Furthermore, it is frequently practitioners who chase up listing problems, preventing even worse administrative performance and greater delays. This is increasingly less likely to happen.
19. With the departure of most experienced lawyers from the field, attempts by the MHRT judiciary to develop efficient case management is likely to founder. With surviving lawyers, if any, being inexperienced paralegals they are unlikely to make early decisions to assist in quicker, yet just disposals. Indeed, we foresee a situation where many clients will be unrepresented, leading to adjournments and/or much more lengthy hearings.
Niche Practices
20. Niche firms specialising in “forensic cases”, that is those clients sent to hospitals by the Courts as a result of criminal conduct will be especially penalised by the proposals. Such cases are less than 15% of MHRT cases, and frequently require very extensive work given extensive history and risk implications. A frequent issue is the lack of appropriate funding and supervision in prospect community setting, often demanding adjournments and extensive research by the lawyers concerned, and perhaps even legal action against those withholding funding.
21. To reflect the seriousness of such cases only Judges can normally preside over them and the Ministry of Justice are parties to the proceedings. The Commission originally placed this work potentially outside the fixed fee scheme, but has now included it. They accept that such lawyers will not benefit by “swings and roundabouts” (that is by clients being discharged before work has been complete) but simply suggest such specialists should diversify “back” into more general mental health work. To reflect necessary preparation, cases are generally listed around 16 weeks from application. The fee is, of course, the same as that for the Section 2 case (listed within 7 days) referred to above. In an initial survey conducted by the MHLA, most leading firms who conduct “forensic” work indicated they would be seriously curtailing or abandoning this work.
Mental Capacity Act
22. The introduction of the new Mental Health Act 2007 in late 2008 will mean a greater number of hearings before the MHRT. This will exacerbate the crisis of a lack of representation. The new Mental Capacity Act 2005 will also demand further representation from this pool of lawyers.
Lost savings
23. The MHLA has made it clear previously (see paper by Professor Eldergill and Richard Charlton at www.mhla.co.uk) that practitioners save the State considerable sums of money. They can assist in the running of the Tribunal through participating in case management and can move “bed blocking” clients into appropriate supervised community facilities. “Bed blocking” in private hospitals can cost the NHS close to £4,000 a week. In additional, legal assistance at key early stages, including ensuring proper aftercare rights are obtained can save millions if dangerous relapses can be prevented.
24. The importance of legal representation in this area is reflected by the fact that it is one of three “core” areas where legal aid before the MHRT is non-means tested. The others are where a suspect is under arrest or for parents whose child is taken into care. Such representation is also necessary for the UK to comply with its duties under Articles 5 and 6 of the European Convention on Human Rights. The collapse of representation in these areas would cause the UK to breach such duties.
Conclusion
25. Psychiatry is far from a certain science. For clients with long-running psychiatric history it is not unusual for a series of different diagnoses to be given over time in a context where the side effects of some drugs mimic psychiatric symptoms. The families and friends of detained patients, as well as the patients themselves, all want to know that such detention and treatment is being properly and independently scrutinised. Proper legal representation is at the core of such a review.
26. In the “Cold War” it was said that a dividing line between the “civilised” West and “uncivilised” East was its treatment of psychiatric patients. The move away from proper legal representation questions where the UK would be in such an equation.
October 2007
The views expressed within this document are that of the author only