The role of the mental health lawyer

The main role of the mental health lawyer is to represent patients at Mental Health Tribunals. Other work can include representation at hospital managers' hearings, in the Court of Protection, at Parole Board hearings and in judicial review proceedings.

A typical Mental Health Tribunal case, where the client wishes to appeal against his detention, will involve the following:

  • Being contacted by the client or a third party.
  • First visit to client to take initial instructions.
  • Reading medical records and checking section papers.
  • Viewing medical, social circumstances, and nursing reports.
  • Taking further instructions.
  • Consideration of instruction of independent experts, usually psychiatric.
  • Representation of client at Tribunal.
  • Discussion and consideration of Tribunal reasons, and any possible appeal.

The first Law Society panel (accreditation scheme) to be set up was in the field of mental health. Quality concerns have led to the decision that, under the Legal Aid contract since August 2014, advocacy at all tribunals must be carried out by panel members. This need for panel membership was not relaxed during the coronavirus epidemic (Legal Aid Agency, 'Coronavirus (COVID-19): contract management and assurance' (14/4/20)).

Brooke LJ made the following comments in R v Legal Aid Board, ex p Duncan and Mackintosh [2000] EWHC Admin 294M, [571]-[572] (emphasis added):

Mental health law is difficult enough today. Reading the report of a psychiatrist, identifying its areas of weakness, commissioning evidence from the appropriate expert to challenge it, and representing a client at a tribunal requires expert professional skills born, as we have said, of education and practical experience. It is not like going down to the magistrates’ court as a duty solicitor, arduous though those duties are.

In the fairly near future the demands made on skilled solicitors in this field are going to increase exponentially. Professor Genevra Richardson’s report on the reform of the Mental Health Act 1983, the Law Commission’s long report on mental incapacity, and the Home Office’s plans to detain people with dangerous severe personality disorders when they have not committed a criminal offence are all in senior civil servants’ in-trays today and may all go to Parliament for approval in the next five years. In addition, the Human Rights Act 1998 becomes law next October and will also shine a bright light on this corner of the law.

Stanley Burnton J commented in R (KB) v MHRT [2002] EWHC 639 (Admin)M, [32] as follows (emphasis added):

The issues before Mental Health Review Tribunals are probably the most important issues decided by any tribunals. The Tribunals make decisions as to the compulsory detention and treatment, and thus the liberty, of the individual. A wrong decision may lead on the one hand to the unnecessary detention of a patient, and, at the other extreme, to the release of a patient who is a danger to himself and may present a risk to the public. A patient will be the victim of a wrongful decision to detain him. Conversely, however, he may also suffer from a mistaken decision to direct his discharge. (On this, see the 1994 Report of Jean Ritchie QC, Dr Donald Dick and Richard Lingham on the case of Christopher Clunis.) The decisions of the Mental Health Review Tribunals are as intrinsically important as many of those of the Crown Court.

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