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.

Certainly there is now an 'escape clause' at three times this figure, but this will be subject to a new form of assessment which could tax down all work to £791. Uncertainty still as to how the system will operate in practice adds further to its burden.

Of further concern is that these fixed fees have been introduced before most work in mental health has been peer reviewed; in other words before the Commission's key, and much vaunted, quality assessment has been thoroughly applied to this area. So even by their own standards the Commission really has no measure of what work they are paying for.

It is not surprising that most specialists in this field were bitterly disappointed that the settlement between the Law Society and Commission retained this appalling structure of fees. Headline figures of '5 per cent more' mean little if your income is being slashed otherwise by 30, 40 or even 50 per cent.

To reflect the extreme concern of practitioners the Society has agreed with the Commission that mental health should be a key initial part of the review of the working of the civil contract by the new Civil Consultative Group (Deed of Agreement Law Soc, LSC, MoJ para 10.1).

First meetings are just starting, with many specialists in the field remaining sceptical that even more talks will get anywhere. However, it is clear that there has to be real movement for national representation to survive. Most practitioners would prefer retention of hourly rates, despite a third reduction in the real value of these since the introduction of the contracting regime in 2000 (Retail Price Index). However if there are to be fixed rates these must be based on real work and case preparation actually necessary to ensure UK compliance with Article 5(4) of the European Convention on Human Rights (Megyeri v Germany [1993] 15 EHRR 584 at para 23).

As an absolute minimum, case start definitions have to be changed so that it is no longer possible for three hearings, a range of aftercare meetings and other proper assistance to receive one payment which bears no relation to the work actually required; there should also reduction of the escape clause to 'twice' the standard fee.

Such changes will create a scheme of funding which will be far from perfect but will give representation in this core area of Human Rights a chance of survival.

Richard Charlton is a partner at Kaim Todner and chairman of the Mental Health Lawyers Association