Mental health legal aid operates in a highly complex way. There is no need for it to be so complex. This complexity requires firms and the LAA to have wasteful administration sapping precious resources which the country cannot afford to waste. The LAA have been instructed by government to limit the cost of Legal Aid and have done so by way of New Matter Starts. Their theory is that this allows them to predict expenditure. This is nonsense since there is an obligation under Art 5 of the HRA to provide representation to patients detained in hospital. As a result, the number of matters opened is entirely dependent on how many people are detained and choose to appeal or whose cases are referred under statutory requirements to the Mental Health Tribunal. Thus, while government might seek for accounting or audit purposes to put a limit on the number of NMS, they cannot in fact do so in the event of there being more patients seeking to appeal than there are available NMS. In that event government would be obliged to increase the number of NMS. In any event, as I will demonstrate below, the number of NMS has changed according to administrative requirements.

The LAA chose to invite bids for the work through an extraordinarily complex process exclusively via an online portal. The scope for errors was high. The bids were split into 3 levels or ‘lots’ depending on volume. My firm bid for lot3 for 500+ NMS because that was the level at which we were working at the time of the bid. We passed all the criteria with flying colours save for one wholly unexpected problem. The reason for failure was opaque but we eventually discovered that we had failed to say how we would satisfy the staff qualifications required for Lot 3 in the event of 1 of our staff not securing admission to the Law Society mental health panel by the start of the contract. Our bid set out clearly how we were certain that she would achieve admission to the panel and indeed within weeks of the closure of the bid and well before the contract verification date, she had achieved it. What we failed to say was what our plan was if she had not done so. How absurd can that be. There was no appeal. That was that.

We were now left with an award of 262 NMS for a year when we needed 508. The LAA, having bound themselves to an artificial limit on NMS, had a problem because there were insufficient NMS to satisfy the numbers sought by the firms who had successfully satisfied the bid criteria. They decided to award each firm the minimum NMS for the Lot in which they were successful. This total was greater than the total NMS originally planned so they increased it. This shows that the total was arbitrary. The result was an artificial cap on each firm regardless of the amount of work they were already doing or how much in demand they were among the people requiring legal advice.

The cap is pointless:  Not only does Article 5 HRA require a NMS for anyone seeking to appeal but also because all providers work to the same quality criteria within their Lot and are all paid the same fixed fee. The cost to the taxpayer whether firm A or firm B does the work is neutral. The cost of administering this system is not. Forget the image of fat cat ambulance chasing law firms because mental health practitioners do not advertise or offer inducements. We get work because people like the service we offer.

It is bad for the taxpayer.  Having set an arbitrary cap on NMS, the LAA unnecessarily constrained themselves in the award of NMS to individual firms. The LAA responded to criticism by agreeing to accept applications for an increase in NMS by 50% where a firm was running out.  In addition to the administrative cost of dealing with applications for an increase, I understand the decision whether to grant the 50 % increase is taken at a high pay grade level.  There is no discernible benefit to the taxpayer in this burden of administration but it is a wonderful job creation scheme for employees of the LAA. It is hard to understand why firms should not simply be allowed to attract work up to the ceiling of their Lot. There can be no additional cost to the taxpayer as another firm would have done that work in any event but it would be cheaper and easier to administer. Legal Aid Agency staff could get on with doing more productive work.

Long standing relationships with clients, carers and other professionals in which important but delicate lines of communication have built up will be lost. There is no mechanism in the LAA’s plans for recognising or placing a value on those unseen features which make the system work efficiently and help to reduce costs elsewhere in the process.

It is bad for vulnerable clients. In order to manage my NMS I have had to turn away patients who then have the task of finding another firm, something which they should not be forced to do when they need all their energy to cope with distressing thoughts. I have asked existing clients if I can refer them to another firm who have spare NMS but they do not want this. They do not want to have to explain complex matters with the risk of being misunderstood to a stranger. For people whose thought disorder prevents them from articulating their version of events or explaining what they accept in terms of treatment and risks, this is a damaging situation. I will not put these clients in that position so will act pro bono in these cases but it is wrong for the government to force me into this situation when there is no need for it.

It creates danger for the public. A solicitor who knows a patient well can identify potentially dangerous manipulation. A solicitor owes a duty to the court not to knowingly mislead it. A new representative will inevitably take time to get to grips with a complex situation which can spread over years and decades. A trusting relationship must be built up over time and can facilitate the acceptance of unpalatable advice on the conduct of hearings and management of risk.

It is bad for business.  Under this ill thought out system, a business can do the bare minimum to satisfy the contract and wait for the work to come to them when the enterprising firms run out of NMS. Entrepreneurship will be stifled if firms have no incentive to improve. The same reasons for success apply to law firms as for any business namely that the effort which goes with an entrepreneurial spirit will attract work through investment in staff training, supervision and technology. The market is a good at identifying quality where all are equal in terms of the contractual minimum.

Expenditure on Legal Aid needs to be controlled but the method employed by the LAA achieves no discernible benefit. It creates unnecessary costs for the taxpayer. If this incompetent management is replicated in other public services, it demonstrates just how hard will be the task of bringing public expenditure under control. The more money spent on administration the less which is available for services. That is a wholly wrong priority. In the case of mental health legal aid, if all firms with a contract were left to open NMS up to the limit of their Lot then it would substantially reduce administrative costs to the firms and for the taxpayer with benefits to all other stakeholders.


John O’Donnell LLB
odonnells solicitors

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