Law Society mental health accreditation scheme - CPD requirements

During late 2017 and early 2018 the Law Society has been retrospectively operating an unpublished policy of disallowing certain CPD topics (including mental capacity law) for the mental health accreditation scheme. It is understood that in February 2018 the Law Society adopted or at least discussed a new more flexible policy. On 28/2/18 an email was sent from Mental Health Law Online, setting out the background and stating that the following steps ought to be taken urgently: (1) the previous, normal definition of "mental health law" should be re-adopted; (2) in any event, the current policy should be published on the Law Society's website and circulated by email among all current panel members; (3) if that policy narrowly defines "mental health law" then it should apply only from the date of publication and not retrospectively; (4) the cases of those who have been adversely affected should be revisited. On 6/3/18 the Law Society said it would investigate and respond as soon as possible. On 4/4/18, judicial review proceedings were issued against the Law Society by a former panel member, Rebecca Hill of GT Stewart Solicitors and Advocates, against refusal of reaccreditation. On 6/4/18, (a) the 28/2/18 email from MHLO to the Law Society was published, (b) the Law Society replied stating that "practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year", and (c) MHLO sought a further email responding to each of the four points raised in the original email. It is now also thought that that the Law Society are retrospectively applying a requirement for and definition of "structured" CPD. The MHLO scheme contains 6 hours of structured, MHA CPD tests per year, but before October 2015 the 12 annual tests were each split between MHA and MCA (see CPD scheme MHA/MCA breakdown for details). If anyone has been adversely affected by either of these issues then please get in touch.

Email from MHLO to Law Society: "CPD for mental health accreditation scheme" dated 28/2/18

Dear Jane

I run the Mental Health Law Online CPD scheme, and many subscribers are members of the Law Society's mental health accreditation scheme.

In recent weeks I have been contacted by subscribers in relation to your approach to CPD (which you call PD). They have either been asked for a breakdown of hours between Mental Health Act 1983 (MHA) and Mental Capacity Act 2005 (MCA), or been rejected for membership on the basis that insufficient CPD was MHA-related. It appears that you have been retrospectively operating an unpublished policy of disallowing MCA-related CPD for the mental health accreditation scheme. Your published policy requires 6 hours of CPD "in the subject area of mental health law". I understand that last week a new, more flexible but still unpublished, policy was adopted in relation to this issue.

Each year my CPD scheme offers 12 online questionnaires based on legal update reading material. Some of the questions are MHA-related and some are MCA-related. Until these recent enquiries I had never imagined anyone would consider the entire content of the CPD scheme to be anything other than "mental health law". Since October 2015, instead of the questionnaires being mixed MHA/MCA, I have set specific MHA or MCA questionnaires on alternate months. This was primarily to make it easier for supervisors to meet their requirements under the Legal Aid Agency (LAA) contract, which are to "undertake a minimum of 6 hours of Continuing Professional Development per year in the Mental Health Category of Law of which no fewer than 3 hours must be on the Mental Capacity Act 2005." Clearly the LAA also consider the MCA to be part of "mental health law".

I understand that the "mischief" you want to avoid is Court of Protection solicitors being on the mental health accreditation scheme purely to meet the supervision requirements in the LAA contract, but with no intention of doing any Mental Health Tribunal work. This policy aim might make sense for you in the long term, particularly as in future the LAA are likely instead to require mental capacity accreditation scheme membership for Court of Protection work. But it is short-sighted to apply it now, as these solicitors require a contract now in order in due course to join your mental capacity accreditation scheme. In any event, it is wrong, as knowledge of the MCA is a necessary part of the mental health law knowledge required of a mental health accreditation scheme member. They say that "hard cases make bad law" and what is happening in response to your policy is that Mental Health Tribunal solicitors who SHOULD be members of the mental health accreditation scheme are being adversely affected.

Furthermore, even if the restriction on permissible CPD could be justified, it is clearly unfair to achieve that end by means of an unpublished policy which so narrowly defines the published requirement of CPD "in the subject area of mental health law". If the policy had been published then subscribers would have answered other questionnaires. That unfairness is compounded by applying the unpublished policy retrospectively without giving applicants any opportunity to remedy the situation. I have advised subscribers to challenge any adverse decision based on the unfairness of retrospectively operating an unpublished policy which could not have been foreseen.

For the reasons set out above, the following steps ought to be taken urgently:

1. The previous, normal definition of "mental health law" should be re-adopted.

2. In any event, your current policy should be published on your website and circulated by email among all current panel members.

3. If that policy narrowly defines "mental health law" then it should apply only from the date of publication and not retrospectively.

4. The cases of those who have been adversely affected should be revisited.

I would be happy to assist in any way I can, and look forward to hearing from you.

Best wishes

Jonathan

Email from Law Society: "RE: Re-accreditation queries from MHLA" dated 6/4/18

Here is the relevant extract:

[I]n respect of PD training, I have had confirmation from Rachel Hawkins (Head of Accreditations) that although we would prefer a full six hours of structured training in Mental Health topics per year, we are aware that there is some overlap in courses, where mental capacity is also covered. The Law Society has therefore agreed that practitioners may submit training in related Mental Capacity topics for up to two hours of the six per year, providing that this is structured training (for example: courses and webinars, where there is a defined syllabus which we may peruse on request). In actual fact, we already allow some leeway in some of the courses submitted, but this is now formalised and I am incorporating this into the scheme Guidance Notes today.

Email from MHLO to Law Society dated 6/4/18

Dear Jane

Thank you for cc’ing me into your reply to the Mental Health Lawyers Association today.

The MHLA is an entirely separate entity to Mental Health Law Online, so I would be grateful for a separate email responding to each of the four points raised in my own email.

Thank you in anticipation.

Best wishes

Jonathan

GT Stewart announcement, 6/4/18

  • GT Stewart Solicitors and Advocates, 'GT Stewart file claim for judicial review in the High Court challenging decision of the Law Society' (6/4/18) — This announcement concludes: "The Law Society has not published detailed guidance on what areas are accepted to be mental health law-‘related’. However, in its published ‘expected standards of competence’, applicants are expected to have sufficient knowledge of areas of law, such as mental capacity, community care and human rights, which are relevant to advising and representing clients in proceedings before the First-tier Tribunal. Rebecca maintains that the courses which she undertook came squarely within the competencies required and that the Law Society’s decision to refuse her application for reaccreditation to the Mental Health Accreditation Scheme is unlawful."