The Legal Services Commission uses peer review to assess the quality of legal advice given to clients. A sample of files is taken from a firm, and reviewed by an independent peer reviewer who is a lawyer experienced in the relevant area of law. Version 3 of the mental health guidance, dated April 2011 and published in May 2011, contains four new sentences (in chapter 4, 'Has the Tribunal been informed of the attendance of an interpreter?' and 'Confirm that the Tribunal is aware of the role of an interpreter and, if necessary, has allowed more time for the case'; in chapter 16, 'Subsequent to the implementation of Rule 11(4)(a) of the Tribunal Procedure Rules 2008, Tribunal decisions are not sent to the client' and 'Do final outcome letters to clients... [h]ave the Tribunal’s written decision enclosed?') and an appendix entitled 'Differences between Welsh and English Law'.
The following are the five possible ratings:
Guidance documents have been published for various areas of law. The guidance sets out the sort of work which is necessary in order to provide a good service. The mental health guidance was published in 2006, and updated in January 2007 at the behest of the Legal Aid minister (the amendments were to reduce the suggested amount of necessary work).
The LSC's position in relation to the guides and the possible ratings can be summarised as follows:
See also Transaction criteria.
The last edition of this guide was published in January 2007. Since that time the number of mental health peer reviewers has expanded and many more files have been reviewed. In addition there have been significant changes to both law and procedure with the introduction of the Mental Health Act 2007, new Rules for the Mental Health Tribunal, now renamed formally as the First Tier Tribunal (Mental Health), and the growth of practice under the Mental Capacity Act 2005. Where appropriate this guide has been amended to address these changes. As in the previous edition, it addresses procedures before the Mental Health Tribunal, although some advice would be applicable to other areas of the representation of those with mental health issues.
A recent meeting of peer reviewers considered what might generally be regarded as “major concerns” in files examined. The following points were agreed:
1. Relevant section or detention papers not being seen or examined
2. Medical records not being examined, or no evidence to support the assertion that they had been examined
3. No evidence of written advice specifically tailored to the client’s situation; that is complete reliance on standardised correspondence
4. No evidenced attempt to check the Tribunal decision for legality
5. Where there is a conflict of interest demonstrated on a file, for example by acting for a party opposing discharge as well as for an applicant patient seeking discharge
6. In cases where the Nearest Relative had the power to discharge the client from section where no attempt had been made:
a) To identify the Nearest Relative with the client
b) Discuss with the client the Nearest Relative’s powers
c) To seek the client’s consent to contact the Nearest Relative
Peer reviewers accept that particular circumstances might prevent these issues from becoming “major concerns.” Illustrations would include the client refusing consent to access medical records or making it clear he, or she, wanted no, or limited, correspondence.
Similarly, additional issues might be major concerns, such as inadequate attendance, but in the particular context of the file samples.
Following further consideration of advice on the “merits of the case”, peer reviewers accepted this could be a very difficult area in mental health cases. In particular, “early advice” in this area was frequently felt to be unrealistic. This part of the guide has been re-drafted to reflect this view. This is not to say, however, that peer reviewers felt that the prospects of success should not generally be discussed when appropriate with the client.
Peer reviewers remain concerned to see what effect the introduction of new funding procedures may have on the quality of work carried out in this area of law. However, to date, there is no clear way for reviewers to conclude how these new fees have impacted on files before them, as no straightforward comparative “before” and ”after” samples files are available. Peer reviewers are aware of the role of “exceptional cases” within the new fee scheme, which may become more common as advisers conduct a range of work within a client’s Tribunal eligibility period.
Peer reviewers feel this guide represents their view of what good practice will generally require in conducting a case before the new Mental Health Tribunal.
This guide assumes knowledge of Tribunal procedure together with the relevant law and should not be used as a substitute for these. It is to be hoped, however, that this guide can assist practitioners to deliver good standards of work, and indeed, despite the pessimism in much of the profession, encourage a positive debate about the delivery of this vital work and assist in the improvement of standards.
As in the previous edition, there is some overlap between some sections of the guide, and subsequently some overlap of content. This has again been seen as necessary so that important issues are not missed.
As indicated in the Foreword to the first edition, the suggestions made in this edition are not prescriptive, unless they repeat regulatory obligation, and it is accepted that practitioners may work in a variety of ways to deliver good quality.
LSC Peer review main page
Legal Services Commission, 'Improving your quality: Mental health' (v3, dated April 2011, published May 2011). Peer review guidance. The previous versions are also available.
Peer review civil criteria. Mark sheet, updated May 2008
The LSC's position in relation to the guides
LSC's refusal, in response to FOI request, to publish peer review decisions (5/7/11)