You don’t have to be mad to work in a mental health practice, but it helps.Some mental health solicitors are working unpaid, others are sabre-rattling about impending action under the Human Rights Act (HRA). All are gravely concerned that the government has turned its back on compassion and left their vulnerable and sick clients to sink or swim.
And legal aid, or rather the lack of it, is the villain of the piece.
Patients sectioned under the Mental Health Act who want to be discharged from hospital require specialist representation at Mental Health Review Tribunals (MHRT). These are usually held in a room at the hospital, with a panel made up of a judge, a medical member and a lay member. Their role is to review the patient’s case and direct his or her discharge when certain statutory criteria have been satisfied. To this end, they question the patient, his or her doctor, social worker, nurse and even, sometimes, a member of his or her family.
Central to the process is the patient’s solicitor, a specialist in mental health law, who should be there representing the patient – and therein lies the rub.
Most mental health practices rely for funding on legal aid, and most of them have now exhausted their legal aid matter starts and been told by the Legal Services Commission that no more will be available until mid-October.
Nobody becomes a mental health lawyer to get rich, but even they need to eat and pay the bills. Nonetheless, some practices have opted to represent their clients at MHRTs for free rather than leave them to stew in hospital.
Some practices have reluctantly passed their clients to firms that still have matter starts remaining. These firms have no knowledge of the clients’ histories and must start from scratch getting to know them and winning their trust.
Other practices, with the support of the Mental Health Lawyers Association, have told the LSC that they are seeking counsel’s advice on bringing legal proceedings under the HRA to protect their clients’ rights to a fair trial (article six) and liberty (article five).
Margaret Houdmont, mental health lawyer at Mansfield firm MH Legal, told me earlier this month that she had five clients awaiting representation at an MHRT, but had been refused any more matter starts until mid-October. ‘The LSC told us to refer the cases to other firms, but we have decided to act for no fee. The local psychiatric unit has [referred work to me] for 25 years and I have represented some of the patients for years. I cannot let them down,’ she said.
Sheila Carrick, a mental health lawyer at Bath firm Mowbray Woodwards, told me: ‘Here in Avon and Somerset, the nearest firms with matter starts are in South Wales or in London, 150 miles away. It was only when we threatened legal action under the Human Rights Act that the LSC backed down and gave us a fresh matter start.’
An LSC spokesman said: ‘Where a mental health provider has used up their allotted number of new matter starts, we would generally expect them to refer the client on to another provider in the area who has capacity to take on new work.
‘However, where transferring the case to another provider may present issues, or where alternative supply does not exist, the LSC will consider the merits of individual cases with a view to issuing a limited number of additional new matter starts to cover such cases.’
So that’s OK, then – hand your client to a rival firm or convince the LSC to treat you as an exceptional case. Simples.
But when did all this insanity start? When did it become acceptable to neglect the vulnerable? And where will it stop?