MHLA response to Consultation on Proposals to Reform of Legal Aid – Mental Health Lawyers Association
Response of the Mental Health Lawyers Association to Consultation on Proposals to Reform of Legal Aid in England and Wales (Cm 7967, 2010)

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.

10% Reduction in Fees

2.1. Introduction

Whilst the MHLA welcomes the opportunity of responding to this important consultation we consider that its proposals, particularly with regards to the 10% reduction in fees, 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 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”

A 10% reduction is therefore very much more than 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 greatly exacerbated 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 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. 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 themselves 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.

Other Responses

Whilst much of the work carried out by our members falls within the Mental Health category, we consider ourselves to be in a good position to comment on the likely impact of the proposals outside the mental health category on the group of clients (those with a variety of mental health conditions or impairment who may have limited capacity) we work with, in their attempts to access legal advice and representation in other areas of law.

These responses are, of course, subject to the proviso that a 10% reduction will make it impossible to practise at all in this area of law.

Whilst we note the fact that it appears (subject to the request for clarification) that little change is proposed to the existing scope of legal aid in the Mental Health category, we have concerns about the impact of other proposals in the Consultation on our clients.

These and other findings need to be borne in mind by the Government.

We are further concerned that the Government should avoid false economies. It is well-known by clinicians that stressful events in people’s lives can precipitate breakdowns in some chronic conditions such as schizophrenia and bi-polar affective disorder. Removing the ability of a person to find advice to assist with what may appear to be a non-urgent housing problem may prompt a deterioration in mental health, which could in some cases prompt an admission to hospital, with concomitant use of scarce inpatient resources, and possibly a further appeal, with all the legal costs that that entails.

3.1. Requests for clarification

We request clarification of the following points. Subject to the response, we reserve the right to make further representations.

Paragraph 4.94 reads: “We therefore propose to retain legal aid for mental health and mental capacity detention cases, including appeals to the First Tier (Mental Health) Tribunal and onward appeals to the Upper Tribunal and appeals to the Court of Protection on deprivation of liberty issues.” The table at page 186 proposes no change to the existing scope of legal help and controlled legal representation (CLR). However, some important work in this category is carried out under legal aid certificates and this includes:

Representation in applications to the County Court to displace nearest relatives. These involve important safeguards to detained patients.

Health and welfare applications to the Court of Protection other than in s21A appeals against standard or urgent authorizations. These will generally engage the parties’ rights under Article 8 (private and family life) ECHR and may engage rights under Article 5 (liberty and security).

Please confirm whether it is intended that these cases will remain within scope.

3.2. Principles

We note the guiding principles set out at para 2.11. We understand the wish to encourage people to avoid litigation through taking responsibility for their problems and in many cases this will be entirely appropriate. The capacity of people to do this will however vary significantly with the individual qualities concerned and the expectations on those involved in litigation must reflect this.

Response to questions:

We have answered those questions upon which we feel able to comment. We have omitted those which we consider outside our knowledge

4.1. Limiting scope

Question 1: Do you agree with the proposals to retain the types of case and proceedings listed in paragraphs 4.37 to 4.144 of the consultation document within the scope of the civil and family legal aid scheme? Please give reasons.

We agree with the decision to retain within scope all those categories of law retained, subject yet again to our comment on the fee reduction. These we consider to be the very least which should remain funded in order for the Government to continue to meet its obligations under the Convention. In connection with the client group we tend to represent, we would wish to underline the importance of the availability of community care law. Coverage in this area is patchy and needs to be actively promoted.

Question 3: Do you agree with the proposals to exclude the types of case and proceedings listed in paragraphs 4.148 to 4.245 from the scope of the civil and family legal aid scheme? Please give reasons.

We have very serious concerns about the decision to remove from scope the areas of law in 4.148-245. We draw the government’s attention to the following:

There is already a lack of good quality advice in these areas of law.

As set out above we consider the removal of these areas (in particular debt, benefits, immigration and family breakdown falling short of domestic violence cases) could increase the stress on vulnerable people so that a non-urgent problem becomes compounded by a deterioration in health.

The Ministry’s own research (see above under “General”) suggests that the availability of legal representation adds significant value to the experience of this client group in all court proceedings.

It is very disappointing to see the removal of advice for wills for the disabled, elderly or single parents. This must be a tiny fraction of the overall budget yet one which can bring peace of mind to those who are vulnerable for these reasons.

Such proposals will significantly affect the workloads of MPs whose surgeries will become the main remaining source of advice.

We have some concerns regarding the proposals in respect of clinical negligence [4.163 –169], which includes psychiatric negligence cases. We note that there are proposals not only to remove these cases from scope but also to restrict the success fee recoverable through CFAs. In our view there are clear risks that firms will be less likely to take on all but the most clear-cut of cases and litigants will have nothing to fall back on. In addition, psychiatric negligence cases often require significant up-front funding of disbursements, which may not be easy to secure under a CFA. We consider that psychiatric negligence claims often have a salutary effect in protecting others and raising standards and awareness generally.

Whilst we would not necessarily be opposed to a system by which a charge would be made on the successful recovery of third party costs, we would point out that many firms rely on receiving what, after all, are just market rate costs to help offset the poor return on most legal aid work.

Debt and mental health issues go hand in hand. There is often a vicious circle, with those experiencing episodes of mental ill health (especially involving mania) getting into debt and also debt frequently being one of the stressors which tip individuals into mental health crises.

We believe that debt and welfare advice should continue to be within scope or else, at the very least, the Government should introduce an effective independent service that combines both legal and accountancy skills to provide advice in both debt and welfare benefit disputes.

Furthermore, in relation to family cases, we note that part of the justification for removing or limiting funding in areas, such as ancillary relief or other private law family cases, is that – whilst it is recognized that parents bringing these cases are often facing difficult situations – clients are unlikely to be vulnerable when compared to detained mental health patients or elderly care home residents. But of course some of these individuals are likely to be mental health patients, either in hospital or in the community, and we would argue that additional help should be available in such cases.

Question 4: Do you agree with the Government’s proposals to introduce a new scheme for funding individual cases excluded from the proposed scope, which will only generally provide funding where the provision of some level of legal aid is necessary to meet domestic and international legal obligations (including those under the European Convention on Human Rights) or where there is a significant wider public interest in funding Legal Representation for inquest cases? Please give reasons.

We do not agree with this proposal for the reasons set out above.

Question 5: Do you agree with the Government’s proposal to amend the merits criteria for civil legal aid so that funding can be refused in any individual civil case which is suitable for an alternative source of funding, such as a Conditional Fee Arrangement? Please give reasons.

We do not agree with this proposal. It is highly unlikely to be possible for the majority of the client group we deal with to be able to use CFAs, in particular in judicial review cases, if this is the effect of the proposal. This proposal is likely to be a barrier to access to justice.

Question 6: We would welcome views or evidence on the potential impact of the proposed reforms to the scope of legal aid on litigants in person and the conduct of proceedings.

The Ministry’s own research referred to above highlighted increased stress for court users with mental health conditions or impairment who were not represented and noted that in many cases the only source of any advice at all about the aftermath of the case and potential appeals came from their legal representatives.

Our members’ experiences are that court proceedings are significantly slower and more expensive with litigants in person. One member described a very straightforward issue in the Court of Protection where all the professional and expert evidence pointed in the same direction taking six days of evidence because of the need to accommodate a litigant in person with undiagnosed mental health problems.

Question 7: Do you agree that the Community Legal Advice helpline should be established as the single gateway to access civil legal aid advice? Please give reasons.

Question 8: Do you agree that specialist advice should be offered through the Community Legal Advice helpline in all categories of law and that, in some categories, the majority of civil Legal Help clients and cases can be dealt with through this channel? Please give reasons.

Question 9: What factors should be taken into account when devising the criteria for determining when face to face advice will be required?

We have very serious concerns about the telephone gateway for the following reasons:

There is very little information about who would staff it and how quality could be assured – will the advisers be legally qualified?

The client group that the MHLA works with are very largely detained patients in hospitals who may not have access to private calls and will almost inevitably require face-to-face advice. The telephone gateway would be able to do no more than make a referral. Hospitals are generally well-equipped to do this and the telephone gateway will add another layer of bureaucracy, to no apparent benefit.

The Ministry’s research referred to above suggested that those with mental health conditions and impairments had mixed success in accessing solicitors by phone.

The gateway represents the end of client choice if this is to be compulsory in all cases. The Ministry’s attention is drawn to evidence presented to Mr Justice Cranston in Public Interest Lawyers v Legal Services Commission [2010] EWHC 3277 (Admin) at para 54 about the risk to vulnerable patients when long-standing relationships with advisers are severed, already referred to above.

We do not seek to argue that there is no role for telephone triage when used to deal with assessment of eligibility for clients who have not previously sought advice. Nor do we argue against the availability of specialist telephone advice to those clients who feel confident to use it. Our concern is with the compulsory nature of the requirement.

4.2. Limiting financial eligibility

Question 12: Do you agree with the proposal that applicants for legal aid who are in receipt of passporting benefits should be subject to the same capital eligibility rules as other applicants? Please give reasons.

We are concerned about the proposals in respect of capital allowances for passported benefits. We consider that the passporting system has worked well and reduced bureaucracy. While it may be the case that some claimants in receipt of income support or employment support allowance have capital over £8000 this is offset for a number of reasons:

Firstly, in such cases the tariff system applies so that their actual income is reduced;

Secondly, the slightly different capital limits for passported clients were a recognition that the DWP have already carried out a relatively stringent means assessment;

Thirdly, recipients of benefits like incapacity benefit are more vulnerable than the average person on a low income and with very limited savings.

For the above reasons, we would not support the suggested changes.

Question 13: Do you agree with the proposal that clients with £1,000 or more disposable capital should be asked to pay a £100 contribution? Please give reasons.

We are concerned by the proposed changes to capital contributions. These include requiring that for most cases everyone with capital of over £1000 to make a payment of £100 and the abolition of the capital and pensioner disregards.

Most people who are eligible for legal aid find it difficult to pay existing bills, without having to resort to pay another bill to have their problem solved. Generally such people have little or no savings.

In practice, we doubt that payment of a token contribution will serve to engender any significant sense of financial investment in their case, since legally aided clients are protected from costs orders. In our experience, clients will already have a considerable sense of involvement in their cases.

We fear that, ultimately, firms will have difficulty in collecting a contribution from a client who may be on a low-income benefit and the money will end up being absorbed by the firm further eroding the good will of practitioners.

Question 14: Do you agree with the proposals to abolish the equity and pensioner capital disregards for cases other than contested property cases? Please give reasons.

Question 15: Do you agree with the proposals to retain the mortgage disregard, to remove the £100,000 limit, and to have a gross capital limit of £200,000 in cases other than contested property cases (with a £300,000 limit for pensioners with an assessed disposable income of £315 per month or less)? Please give reasons.

We support the extension of the mortgage disregard.

However it appears somewhat illogical to then impose gross capital limits of £200, 000 / £300, 000 respectively which include capital before the subtraction of a mortgage. In practice, this could mean that a pensioner on £300 a month income with net equity of £5000 would be ineligible for legal aid.

Given that, under the proposed changes, the type of cases which would continue to qualify for advice would involve the pressing issue of life and liberty, the Association’s overall position would be to maintain the current capital eligibility criteria.

Equity and pensioner capital disregards reflect the reality of a significant number of people living in conditions of poverty, whilst owning an ordinary property. This is particularly true in respect of pensioners. The Association is particularly concerned about the effects on parties involved in proceedings in the Court of Protection where elderly and/or incapacitated individuals would not qualify for legal aid in the event that they owned a property worth more than £300, 000.

For many, or even most, elderly and infirm individuals, obtaining equity release or taking a loan out secured on their property may cause a great deal of distress. This also applies to the idea of a legal charge being placed against their property.

Question 16: Do you agree with the proposal to introduce a discretionary waiver scheme for property capital limits in certain circumstances? The Government would welcome views in particular on whether the conditions listed in paragraphs 5.33 to 5.37 are the appropriate circumstances for exercising such a waiver. Please give reasons.

The situations where it would be appropriate to grant a property eligibility waiver should include where the client is elderly and would have difficulty dealing with and managing a loan or equity release application.

Question 17: Do you agree with the proposals to have conditions in respect of the waiver scheme so that costs are repayable at the end of the case and, to that end, to place a charge on property similar to the existing statutory charge scheme? Please give reasons. The Government would welcome views in particular on the proposed interest rate scheme at paragraph 5.35 in relation to deferred charges.

In particular with elderly mentally infirm clients, the imposition of a scheme to allow charging against properties would be likely to cause considerable distress and could deter clients from applying for representation in Court of Protection cases concerned with the welfare of an incapacitated close relative.

Question 18: Do you agree that the property eligibility waiver should be exercised automatically for Legal Help for individuals in non-contested property cases with properties worth £200,000 or less (£300,000 in the case of pensioners with disposable income of £315 per month or less)?

Given that advice provided under the Legal Help Scheme may lead to the avoidance of litigation and is likely to be targeted at the most needy members of society (including mental health and community care matters) and given the likely low value of the claim and high benefit, we consider it disproportionate, in terms both of principle and administrative resources, to seek to recover costs through a new statutory charge.

4.3. Civil Remuneration

Question 32: Do you agree with the proposal to reduce all fees paid in civil and family matters by 10%, rather than undertake a more radical restructuring of civil and family legal aid fees?

Question 33: Do you agree with the proposal to cap and set criteria for enhancements to hourly rates payable to solicitors in civil cases?

Question 34: Do you agree with the proposal to codify the rates paid to barristers as set out in Table 5, subject to a further 10% reduction?

We do not agree with the proposed reductions and refer you to our comments and the opening of our response.

4.4. Experts’ fees

Question 39: Do you agree that:

• there should be a clear structure for the fees to be paid to experts from legal aid;

• in the short term, the current benchmark hourly rates, reduced by 10%, should be codified;

• in the longer term, the structure of experts’ fees should include both fixed and graduated fees and a limited number of hourly rates;

• the categorisations of fixed and graduated fees shown in Annex J are appropriate; and

• the proposed provisions for ‘exceptional’ cases set out at paragraph 8.16 are reasonable and practicable?

Please give reasons.

We agree that there is a clear need to regulate the fees of experts.

This needs to balance the need to access good quality expert input against runaway costs. It is very important that, in seeking to rein in the costs of experts, patients’ rights are not adversely affected. There will always be some cases which call for a particularly expensive report (e.g. cases where there is dispute as to the presence of Asperger’s Syndrome). Such cases call for expert opinions from clinicians who are in short supply and may be some distance from the client.

4.5. Proposals for savings: