Opinion: where next for mental health?

Providing legal safeguards for detained patients is essential in a civilised society. However, the arrival of fixed fees is making proper representation for these most vulnerable clients all but impossible, says Richard Charlton.

The provision of legal advice and assistance to those detained in hospital and subject to compulsory treatment has been seen for many years as a cornerstone of British justice; a measure of the civilisation of the United Kingdom. Thus the Law Society created the first specialist panel of legal specialists for this area of law; the Conservative and Chancellor Lord Irvine directed that legal aid here would be non-means tested and the High Court made its first Remedial Order under Human Rights Act 1998. At the same time, as many practitioners know to their clients' cost, psychiatric diagnosis is a far from certain science; yet misdiagnosis here can result in not only deprivation of liberty but also the receipt of powerful antipsychotic drugs, many of which create their own 'symptoms'.

It is to counter the threat of the twin evils of loss of liberty and compulsory treatment that the law has properly seen this area of law as a priority; and to make this priority effective, robust legal representation is required.

For many years it has been accepted practice among leading practitioners in the field that the only effective way to properly represent clients detained under the Mental Health Act was thorough preparation. Examining section papers, obtaining earlier papers, taking clients slowly through complex reports, considering medical records all takes much time.

However as the High Court has appreciated on more than one occasion, R(DJ) v MHRT [2005] EWHC 587 (Admin), such work is critical to avoid the 'tyranny of reports'; 'truths' just adopted from earlier reports which adopted them from earlier ones and so on. Just as critical is the need to understand the trends in an illness; appreciate earlier diagnosis (perhaps several) and return to contemporaneous source material (particularly medical records) to examine contested key events.

One group of well-established practitioners have recently further confirmed that this work is usually necessary. Mental Health Peer Reviewers in their Guide to Improving Your Quality (Improving Your Quality: Mental Health, published by LSC) sets out advice to step-by-step preparation in a manner most familiar with the field would see as generally common required practice. Everyone, it seems, except the Legal Services Commission. Despite the existence of this Guide, the Commission has introduced a scheme of fixed fees which will not let the majority of lawyers comply with it without financial loss. For a total sum of £791 (this will increase by 2 to 5 per cent from 1 July 2008 according to Deed of Settlement Law Society (LSC, MoJ para 11.1.1) practitioners can be required to prepare and attend up to three hearings in a year for a client; and attend a series of aftercare meetings. Under the previous system these would be a series of different hourly paid cases, resulting in frequently twice the level of payment.