Legal Update
Spring 2009

Article 1 - Mental Health Act 2007 What's New? - Douglas Taylor

The Mental Health Act 1983 had governed the care of those with mental ill health for 25 years; however, the Mental Health Act 2007 is now in force. Here are a few examples of the new law:

  • The definition of "mental disorder" has changed. Section 1 now simply states, "Mental disorder means any disorder or disability of the mind."
  • Supervised Community Treatment enables some patients to live in the community subject to Community Treatment Orders (CTO), (these replace Supervised Discharge Orders.). Conditions will be attached and patients can be recalled to hospital without notice.
  • A patient may apply to displace their nearest relative (NR),
  • The "treatability test" has been replaced. Section 4 requires that appropriate medical treatment is available for the patient. Section 145 states that the purpose of the medical treatment has to be to, "alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations."

It may be that the rationale behind the new law is derived from the Government's desire to avoid headlines associated with the criminal conduct of those with serious personality disorders, which many psychiatrists regard as ‘untreatable' (e.g. Michael Stone who murdered Josie Russell's mother and sister) and the desire to enhance ‘Care in the Community' (a.k.a., saving money on hospital beds). Or it may be these changes will improve the system for those detained...

At first glance, the new ‘appropriate medical treatment' test might appear to assist an application for discharge, as many conditions do not have effective medications/treatments; however, Section 7(1) widens the old definition of ‘medical treatment' in the new Section 145(1) to include,

"nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care."

The new definition includes ‘specialised services' offered by nurses and social workers, which aim to improve or assist the patients' physical and mental abilities and social functioning. The question remains, what is a ‘specialist service'?

There will be few cases where the professionals will not offer some treatment capable of satisfying this definition; hence, it will be difficult to facilitate a discharge merely on the basis that there is no effective ‘treatment'. How will the Judges of the new Upper Tier interpret such a definition? Watch this space"

Article 2 - How Safe Is Your Consent Order? - Baljinder Bath

It seems that whenever we turn on the news these days, there is nothing but doom and gloom. On a daily basis companies are going bankrupt, people are losing their jobs, and house and share prices are spiralling downwards. Indeed, as the recession deepens, it is likely that in the future we will not only have to consider the Matrimonial Causes Act 1973 but also the Insolvency Act 1986. One such recent case was Avis v Turner [2007] EWCA Civ 748. In that case Mr. and Mrs. Avis divorced in 1985, and in the course of ancillary relief proceedings it was ordered by consent that the former matrimonial home be held on trust for sale to be divided two-thirds to the wife and one-third to the husband on effectively Martin terms. Mr. Avis was declared bankrupt in 1989. In 2005, 16 years on, his trustee-in-bankruptcy sought an order for a sale of the FMH pursuant to s.14 and s.15 of TOLATA 1996, notwithstanding the terms of the earlier consent order. The Court of Appeal held that on an application by a trustee under TOLATA, s.15 must be read in light of s.335(A) of the Insolvency Act 1986 which provides that where such an application is made after the ending of one year beginning with the first vesting of the bankrupt's estate in the trustee, unless there are exceptional circumstances, the interests of the bankrupt's creditors outweigh all other considerations. So was there anything exceptional about Mrs. Avis's case - a poor housewife, who was living on a low income and the victim of a bankruptcy that had occurred many years after she had divorced her husband? Judge Pelling QC, who heard the second part of the case on 17 April 2008, held there was nothing exceptional, although he allowed a generous period before the property was delivered up to the trustee!

The days of trusts for sale have long gone, but the current practice of a charge on the FMH would still fall foul of an application under TOLATA. So what do you do if you act for the wife in a case such as this? The starting point must be the date of the bankruptcy. By virtue of s.283A, Insolvency Act 1986, at the end of a period of three years beginning with the date of the bankruptcy, any interest of the bankrupt in a dwelling house which at the date of the bankruptcy was the sole or principal residence of the bankrupt's spouse, ceases to be comprised in the bankrupt's estate. If that does not help negotiate with the trustee, the reality is that in the current climate, he may have no greater success in selling the house than your client!

Article 3 - We All Stand Together - Douglas Taylor

The Legal Services Commission (LSC) are currently negotiating with the Family Law Bar Association (FLBA) following its proposal to reduce the family bar's annual Public Funding budget from 1 April 2009, by £6.5million. The LSC propose to fund the reduction by a massive cut to the barrister's graduated fee scheme in private family law work (children and ancillary relief cases). The LSC gave notice of the proposed cuts at 4pm on the 23 December, Happy Christmas!

To counter the proposals, the FLBA is utilising data gathered in a comprehensive fees survey of all FLBA members in October 2008. College Chambers, who oversaw the collation and submission of data from all chambers in Wessex, awaits the outcome of negotiations with bated breath!

Douglas Taylor is the FLBA's fees representative for Wessex and represents the Bar on the Family Justice Council, he would be pleased to answer your queries regarding the LSC's proposals. The LSC amended its proposals at the last moment to provide for the whole of the cut to fall on private law cases, rather than sharing the cuts with public law cases. Would it be bad publicity if they cut fees in public law work in the light of Baby P?

In November 2007, the LSC admitted that it was making a profit on private law work because its income from the realisation of legal aid charges (secured against legally aided parties' homes), outstripped the cost of historic and current public funding. In light of this admission one is forced to question the LSC's motives for its proposed cuts.

An even bigger challenge to the Public Funding of family work looms in April 2010. ONE CASE ONE FEE. It will affect all legal aid family practitioners from both sides of the profession and is regarded by many as a "divide and rule" tactic.

Wayne has spoken with a number of solicitors regarding these proposals and the consensus is that the proposed fees are not workable: £297 for two days advocacy [solicitor or counsel], ‘all in', in private law cases.

Wendy Hewstone at Access Law in Southampton, is the Law Society Council member for the Legal Aid Practitioners Group and is responding to the LSC proposals via LAPG and the Access to Justice Committee of the Law Society. If you have any comments you wish to pass to her she can forward them on your behalf; or, alternatively the Law Society, Bar Council, Association for Child Care lawyers, Resolution, LAPG and Family Justice Council are responding and you may respond through them. Please note, the consultation period closes on 18 March 2009.

The LSC proposals seem badly constructed throughout and it is difficult to determine what figures the LSC is using for its calculations. The FLBA have already been able to highlight a number of mistakes and miscalculations in the consultation paper.

There are proposals to taper fees, so that for private family cases the hearing fee reduces after five interim hearings (seven for public law cases) even if there are a greater number of hearingsthrough no fault of the advocate. The fixed fees are very low and bear little relation to current fee levels.

If our professions are forced to accept these preposterous proposals, or even an improved version of them, we believe that it will be essential to develop close and mutually advantageous business/financial relationships with our solicitors.

On that note, Wayne would be pleased to discuss the situation with you at your convenience. We recommend that any solicitor dealing with publicly funded work should attend the various workshops that have been planned throughout the area by the LSC this month. You will see us there. If you have any queries or thoughts concerning the proposed changes, then please feel free to call Wayne in Chambers and he will do his level best to answer you queries.

The proposed cuts will undoubtedly effect the administration of justice. Judges are already concerned about the increase in the number of parties appearing in person, the consequences for listing and for the potentially damaging effect on the procedures adopted in all Private Law cases, that currently lead to such a high proportion of cases settling at dispute resolution hearings.

The LSC's proposals threaten the viability of this work for us all and therefore the availability of any competent solicitor or counsel to undertake such important work. Together we stand, divided we fall!

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