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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.

The current mental health guidance is version 4 (dated July 2016, published 29/9/16).[1] A document containing the changes between version 3 and version 4 is available on MHLO,[2] as are the previous versions.[3]

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.[4]

The old Transaction criteria are also a useful read

Preface to the fourth edition of the MH guidance document

There have been a number of important changes since the 3rd Edition of this Guide. By way of background, and reflecting the concerns as to the quality of representation expressed by all the Professional Bodies, including the Law Society, the Mental Health Lawyers [Association] and the Tribunal Judiciary; the Legal Aid Agency introduced in its 2014 Civil Contract terms the requirement that only members of the Law Society’s Mental Health Tribunal Panel could represent a patient as an advocate under Legal Aid. In addition, the Law Society have enhanced the training and assessment requirements for membership of the Panel itself.

However, the requirement of Panel membership does not apply to advocacy conducted by barristers in independent practice. In the rare circumstances where such an instruction is necessary, practitioners with legal aid contracts need to aware of the requirement to instruct appropriately skilled counsel who allow sufficient time for their vulnerable clients. This is also a requirement of the Bar Code of Conduct and is referred to in this edition. Providers should be aware that they remain responsible for ensuring that work carried out by counsel is compliant with their legal aid contract.

Other changes in this edition include greater reference to the Law Society’s latest edition of Representation before Mental Health Tribunals; the edition at the time of writing being 22 January 2015. This guidance, which has the status of a Practice Note, should be read in conjunction with this Guide. It has been greatly enhanced to assist practitioners including in areas such as professional conduct (including interpretation of the new Solicitors Regulation Authority Code(“SRA”)); together with further guidance as to confidentiality and the use of independent reports.

Further changes include updated references to the new SRA Code 2011; as well as changes to Mental Health Tribunal Rules; Practice Notes and Guidance. Tribunal Rule changes, of course, include the need to advise as to the new Rule 34 and the role of the preliminary medical examination in s2 Tribunal cases. In addition, the Tribunal has increased its standard managing of cases, and there is reference to these in this edition.

In the past peer reviewers have met to consider what might generally be regarded as “major concerns” in files examined. The following points of concern have been 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.

As before this Guide is not prescriptive, but again aims to assist practitioners achieve improved quality notwithstanding the challenging financial times that they face.

Richard Charlton

July 2016

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

External links

References:

Other: