Simon Foster welcomes the improvement in mental health legal
advice but issues a warning.
Ten years ago, if you wanted a solicitor to advise you on a
mental health matter at public expense, you could have instructed
any of the 55,000 lawyers registered with the Law Society willing
to take you on.
However, there was no guarantee that this individual had either
the expertise or the commitment to pursue the case properly. The
more specialised the area of law, the greater the likelihood of
getting a solicitor who had never done such work before. Most of
them would “have a go”, relying on a reference book and common
sense. The results were patchy.
All this has changed. First, the Law Society set up a panel of
solicitors who had undertaken additional training in mental health
law. In 1993 a franchising system brought in quality standards for
the first time. Finally, in January 2000 legal aid evolved into
If a solicitor now wants to carry out mental health work at
public expense, he or she has to be a panel member (or be
supervised by one), and meet the franchising quality standards, and
have a contract with the Legal Services Commission to undertake a
certain number of cases each year. If this does not create
specialist expertise, nothing will.
So people with mental health problems are on balance better
served now; but there are two reservations. First, instead of
having access to thousands of solicitors of variable quality, the
client now has to go to an “approved supplier” with the necessary
expertise. In mental health there are only about 400 in the whole
of England and Wales. Not surprisingly, they are concentrated in
London and the major cities. What do you do if the only mental
health solicitor within 50 miles has no time to take your case? A
publicly-funded solicitor is allowed to take on a small number of
cases outside his or her contracted area of work. But because of
their sensitive nature this does not apply to mental health cases,
without special permission.
There is a second issue. In the old days, clients who had been
detained in hospital could ask the solicitor who represented them
at tribunal to advise them on, say, their family difficulties. No
longer. Unless the solicitor concerned has contracts in both mental
health and family law, he or she has to refer the client to another
solicitor. This may guarantee a higher level of expertise, but it
loses the continuity and, crucially, the trust which the client has
developed in the original solicitor.
The quality of mental health legal advice has improved
enormously in recent years. However, in this area especially, the
personal relationship between solicitor and client is as important
as legal expertise. Some years ago social workers saw the loss, as
well as the benefit, of the move towards specialisation and away
from generic work. I hope that in its zeal to drive up standards,
the Legal Services Commission has the flexibility to meet the needs
of the client, not simply those of business efficiency.
Simon Foster is principal solicitor at