The MOJ have announced that tenders for civil contracts to deliver mental health advice and representation from August 2014 will open in February 2014. Representation for clients detained under the Mental Health Act 1983 (MHA) is protected by statute under the Access to Justice Act.
I discussed access to legal representation for people detained in hospital and the proposed tender with Peter Edwards, president of the Mental Health Lawyers Association (MHLA) at his offices in Hoylake, Merseyside. Peter told me it has long been the MHLA’s belief that because of the statutory obligation of the LAA to provide representation at tribunals, and the finite number of such hearings the proposal to allocate blocks of matter starts is not necessary and places an unnecessary administrative burden on the LAA and practitioners alike, suggesting that representation should be similar to criminal legal aid where there is no such restriction. It is however possible to complete none tribunal work under the current public funded contract, such as advising about treatment and representation at other hearings held at hospitals where there is no statutory requirement for public funded representation to be provided , hence the LAA’s reluctance to remove NMS. When I was head of the Legal Services Commission’s (now the Legal Aid Agency (LAA)) Mental Health Unit, something that always surprised me was that there was no requirement for caseworkers to possess any qualification or experience of representing a client at a Mental Health Tribunal.
Tribunal chairs often commented on the different standards of advocacy they observed. This position is being addressed in the February 2014 tender round with criteria being introduced so that only those accredited under the Law Society’s mental health scheme can represent a detained client from 2014.
This is something that Peter welcomed, however he was keen to stress that consideration must be given as to how trainees gain experience to allow them to become qualified and that the profession continues to develop in order to prevent a cartel developing. He also queried under the proposal whether barristers who specialise in this field who are not panel members will be able to continue to represent clients at tribunal after its introduction, something he felt sure was not the LAA’s intention. The number of tribunals continues to increase annually so provision must be maintained. Peter enthused that the recent Mental Health Lawyers Association conference in Liverpool attracted a record number of delegates, which together with an increasing membership of the professional body demonstrates, he believed,an increased commitment to professional development.
In addition to representing clients detained under the MHA, the LAA contract will continue to allow legal providers to provide advice and representation for clients detained under the Mental Capacity Act (MCA) and provide representation in the Court of Protection. Indeed it appears that there is an expectation that all providers should provide this service as all firms who tender must employ an authorised litigator. Peter spoke of the highly specialist nature of this work in a fast developing area of law and stressed that he would welcome specific tests of competency and supervision to be developed and demonstrated by practitioners to ensure the most vulnerable in society gain appropriately skilled advice. A key recent development within this field has been the recent adjudication on 21st November 2013 that people detained under the MCA can benefit from automatic non-means tested legal aid allowing review of their detention under Section 21 of that Act. This affords them similar rights to those detained under the MHA prompting the MOJ’s interpretation of LASP0 to be amended. A press release concerning this case can be found on the MHLA website HERE
There is provision within the LAA criminal contract that those arrested and detained in a police station have access to a lawyer within 45 minutes and gain free legal representation. However, access to a mental health lawyer for those detained against their will and who have not committed a crime is far more complex, with it taking up to 6 months for them to appear before a tribunal. Peter explained his key motivation in a career spanning 40 years representing clients in this field is ensuring that the vulnerable have a voice and people have access to their human rights.
Ghandi once said that the measure of a society was how it treated its weakest members. Currently there are up to six million people affected by the MCA who are either vulnerable themselves or are being cared for informally or formally. Peter asked “how do you instruct a solicitor if you don’t have capacity?” “It can often be in the interests of relatives, care workers and medical professionals to not challenge deprivation of liberty but surely they must be accountable to the law.” People often consider that their ‘next of kin’ can act on their behalf if necessary. However, if they lose capacity, this term has no legal status unless someone dies intestate and therefore lasting powers of attorney are important considerations to secure wishes are met in the event of mental incapacity and deprivation of liberty.
A key area for mental health and community care practitioners to consider together with their tenders is that those who do not hold either the Lexcel Quality Standard or a contract in another category of law issued by the Legal Aid Agency since 2011 will have to successfully complete an SQM Audit by the end of July 2014 in addition to completing their tender if they wish to continue to deliver services in this key area of work. It is important that this is considered immediately because auditors will seek to obtain evidence of past compliance against either Lexcel or the SQM.