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The mental health fee scheme

The rules are set out in paras 7.47ff of the Civil Specification.

Cases are paid either:

(a) on a fixed-fee basis, depending on the type of case and level reached; or
(b) on an hourly rate, if that would amount to at least three times as much as the fixed fee (these are called ‘escape fee cases’).

This section will consider the payment system in detail.

Non-Tribunal fee

This fee covers all work which does not include an application to the Tribunal (whether because the client was ineligible to apply or chose not to) – for example attendance at a hospital managers’ hearing.

If a non-tribunal fee is claimed for a matter then none of the MHT fee levels can be claimed (and vice versa). In other words, usually one of the following will be payable:

  1. Non-tribunal fee.
  2. Level 1.
  3. Levels 1 and 2.
  4. Levels 1, 2 and 3.

MHT Fee Level 1 – Initial advice

This covers the following (specification para 7.63):

This fee level covers initial advice in any case where the Client is eligible and submits or has submitted an application to the MHT. It covers the work done in making an initial visit to the Client, and follow-up work such as sending initial letters of instruction or making the application to the MHT if none has been made.

If a Tribunal application has been made before your meeting with the client then you can apportion part of your initial visit as ‘Level 1’ and part as ‘Level 2’ if work normally claimable under Level 2 has been carried out.

MHT Fee Level 2 – Negotiation & preparation

This covers the following (paras 7.65 and 7.66):

This fee level begins once the initial advice has been given and an application has been made to the MHT. It includes all negotiation with third parties (such as doctors and hospital managers) and all preparation for the MHT hearing
.… You can claim the Level 2 fee only when you have carried out 30 minutes of preparation or advice or had separate communication with other parties on legal issues.

It covers all hospital managers’ hearings, CPA meetings, or other meetings, which take place prior to the Tribunal hearing, in addition to considering reports and medical records, further attendances on the client, etc. Prioritise making the application to ensure that level 2 is claimable.

The 30 minutes must be made up of real time spent – letters and calls do not count as 6 minutes.

MHT Fee Level 3 – Representation before the MHT

This covers the following (para 7.69):

This fee level primarily covers the act of representing the Client at the MHT and any aftercare services.

This fee is payable for attendance at the Tribunal hearing (or, if there is more than one, for attendance at the final one).

Adjourned hearing fee

This covers the following (para 7.70):

When a MHT hearing is adjourned or is postponed or cancelled on the day at the request of the MHT or Responsible Clinician, or in circumstances where you make a request to adjourn, postpone or cancel, and where you could not have otherwise reasonably avoided making such a request, and you have already incurred travel costs and/or some representation costs, then you may claim an Adjourned Hearing Fee.

In cases where a hearing is adjourned (or there is a deferred conditional discharge) the Level 3 fee can be claimed for the last hearing which takes place; the ‘adjourned hearing fee’ (below) is payable for all other hearings – alternatively, it is possible to elect to claim the adjourned hearing fee for all hearings (this would be preferable if it leads to the case becoming an escape fee case).

Remote travel payment

This ‘bolt-on’ payment is potentially payable for travel to certain hospitals. At the time of writing there have never been any hospitals attracting this payment. The fee is payable once per level, and is different for different levels.

Escape fee cases

In order for a matter to become an escape-fee case its hourly-rate costs must exceed

  • Three times the total of all fee levels payable plus
  • The total of all additional payments payable (not three times this element).

The example given in the specification (para 7.81), which involved a Tribunal case with two adjournments followed by a final hearing, is:

(3 x (L1 fee + L2 fee + L3 fee)) + Adjournment fee + Adjournment fee

The LAA scrutinise all escape-fee case claims, in order to check that the proper amount has been claimed (in other words, to nil assess or reduce the claim to below the escape-fee threshold if necessary). There is an appeal procedure.

‘Rolling up’

Issues arising out of one period of eligibility are all ‘rolled up’ into one matter start, with the exception of the situations under paragraph 7.23 discussed below under "Matter start boundaries". So hospital managers’ hearings and CPAs will get rolled up with the appropriate Tribunal matter.

These ‘rolling up’ rules do not apply to conditionally-discharged patients (who have a new matter for each legal problem, without any rolling up). It had been long-standing LAA policy that tribunal reference matters were treated as ‘standalone’ and did not roll up with any other matters. However, the current policy is that, while two concurrent Tribunal proceedings are separate matters, any non-Tribunal work will ‘roll up’ with an application or reference.

A hospital managers’ renewal hearing belongs to the eligibility period during which the RC’s decision to renew was made (i.e. possibly not the period during which the hearing takes place). It will be rolled up with the previous period’s matter (if any) OR claimed as a separate matter (if there was no matter in the previous period).

Matter start boundaries

For detained patients, new matter starts have to be opened ‘Upon the following events … for any subsequent work on a new legal issue’ (specification 7.23):

  • The client enters a new eligibility period.
  • There is a change in section type.
  • The client is discharged, including onto a CTO.
  • The client withdraws and (within the same period of eligibility) reapplies.

The LAA’s April 2014 guidance, and the August 2014 specification, make clear the LAA position that a change in section type between Tribunal application and hearing does not result in a ‘new legal issue’. Part 3 of that guidance considers the matter further.