Peer review

The Legal Aid Agency 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. Peer review was introduced to address the lack of legal assessment of files, in contrast with the ‘tick-box’ approach of compliance audits.

The system

The following are the five possible ratings:

  1. Excellence
  2. Competence Plus
  3. Threshold Competence
  4. Below Competence
  5. Failure in performance

Peer reviewers obtain 20 files and mark 15 according to the five ratings above, then give the sample of files an overall rating. The ratings are based on: (a) communication with client, (b) advice given, and (c) work done.

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, and can be quoted to explain the need for work which is disallowed on assessment. These are set out below.

The position of the LSC (which became the LAA) in relation to the guides and the possible ratings can be summarised as follows: (1) The guidance is not a directive for practitioners, but rather an aid to assist improvement from PR3 (threshold competence) to PR2 (competence); (2) Legal Aid funding is a limited budget, value for money is the essential objective, and a PR2 rating represents the best value for money; (3) Undertaking further work for clients to obtain a PR1 (excellence) rating is not encouraged.

The old Transaction criteria are also a useful read

Major concerns (extract from guidance)

Note that numbers 5, 7 and 8 are new in the 2020 edition.

Peer reviewers have considered the following as among “major concerns” in files examined:

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 no written advice at the conclusion of a case in terms of rights as to informal status/ s117 rights/ detained patients’ further rights of application or referral and relevant entitlement/detention dates
6. 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
7.Where there is no evidence of an informed discussion with the client about whether to seek a r 34 Medical Examination in non s2 cases
8. Where there is concern as to the client’s capacity, has a rule 11 appointment has been considered, and has the issue as to the client’s capacity been noted, and kept under review as the case progressed?
9. 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.

Chapters

The chapter headings in the Peer Review guidance document are:

1. Are files organised and legible?

2. Were the advisers selected to be involved in the matter appropriate?

3. Was the initial contact with the client timely?

4. Are clients who are detained in hospital visited sufficiently regularly to obtain instructions and inform them of progress?

5. Has the client been advised of the merits of their case?

6. Are letters and information sheets used appropriately?

7. Has the client been advised about the powers and the procedure of the Tribunal?

8. Have the fundamental issues of the case been analysed appropriately as the case progresses?

9. Has the adviser promptly considered the use of independent experts to assist the client’s case?

10. Has communication been established with third parties who may be able to assist the client?

11. Have the necessary nursing, medical and, if appropriate, Social Services or Community Health Team, records been obtained and considered?

12. Have the client’s Tribunal reports and statements been considered promptly on receipt?

13. Has there been thorough preparation for Tribunal hearings?

14. Have all necessary referrals been made in an appropriate way?

15. Have the necessary steps been taken to represent children under 18 years at the Tribunal?

16. Have adequate steps been taken to explain the Tribunal’s written reasons; their adequacy; the right of review and appeal together with confirmation of the client’s current legal status?

17. Differences between Welsh and English Law - Appendix

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