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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During late 2017 and early 2018 the Law Society has been retrospectively operating an unpublished policy of disallowing certain CPD topics (including mental capacity law) for the mental health accreditation scheme. 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 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 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, providing that this is structured training (for example: courses and webinars, where there is a defined syllabus which we may peruse on request)". It is now also thought that that the Law Society are retrospectively other CPD requirements. On 8/5/18 the Head of Accreditations responded to a further email to say that the Law Society is currently reviewing its requirements and, in order to provide clarity for its members, hopes to send information suitable for publication in June. 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 any of these issues then please get in touch.

Email from MHLO to Law Society, 28/2/18

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, 6/4/18

Here is the relevant extract of an email from the Product Manager (Accreditations):

[I]n respect of PD training, I have had confirmation from [the 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.

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."

Email from MHLO to Law Society, 30/4/18

I would be very grateful if you would provide me with a response to my emails of 28 February 2018 and 6 April 2018. [The Product Manager (Accreditations)] has in the past been very helpful in replying to my emails when I was updating the MHLA’s panel course book, so I can understand why she cc’d me into her reply to the MHLA on 6 April 2018 instead of sending me a separate reply. It did mean, however, that her email did not address the points made in my email. The problems discussed here have been raised with me by so many people that they merit wider publication than just in a coursebook, so I would be grateful for a detailed reply which can be published on Mental Health Law Online.

The Law Society’s definition of “mental health law” in late 2017 and early 2018 appeared to exclude any mental capacity law CPD, and the current policy stated in the email 6 April 2018 is 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”. The main problem here is the fact that the Law Society was operating an unpublished policy which no one could have anticipated (as we all recognise that mental health law includes mental capacity law) and, in addition to that, was applying it retrospectively to past years and rejecting applications on that basis.

To remedy the situation the Law Society needs to publish the current policy clearly on its website, circulate it among panel members by email, and guarantee that it will only be applied to CPD undertaken from then on. This would allow people to take the relatively simple steps involved in fulfilling the published CPD requirement.

Additionally, it would also be necessary to identify those who have been adversely affected by the retrospective application of the unpublished policy, revisit the decisions made in their cases, and compensate them for financial loss such as the cost of making an appeal to the chief assessor or attending a further panel course.

Similar points arise in relation to the changes made to the re-accreditation assessment part of the guidance, including the need for “structured” CPD (a term introduced in August 2016 and explained in the December 2016 guidance), and for it to be within “complete” CPD years rather than the scheme membership years (also introduced in August 2016). The main problem here, again, is not so much the requirements themselves but the way in which they are communicated. An unannounced replacement of the guidance document on the Law Society website is insufficient as members are unlikely to notice until it is time to reaccredit. Instead, changes should be clearly highlighted and circulated by email among existing members. If there has been any retrospective application of changes then the relevant cases should be revisited.

I look forward to your response, and hope that I can assist with the publication aspect of the solutions proposed above.

Best wishes

Jonathan

Email from Law Society, 8/5/18

The Head of Accreditations responded to say that the Law Society is currently reviewing its requirements and, in order to provide clarity for its members, hopes to send information suitable for publication in June.