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SERVICE USERS’ACCESS TO SOLICITORS APRIL 2019

This policy supersedes all previous policies for Service Users’ Access to Solicitors

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Policy title Service Users’ Access to Solicitors

Policy reference

MHA05

Policy category Corporate

Relevant to All staff who are involved in assisting service users who are subject to the Mental Health Act 1983 access solicitors e.g. Ward Nurses, Care Coordinators, Responsible Clinicians

Date published November 2015

Implementation date

August 2019

Date last reviewed

April 2019

Next review date

April 2022

Policy lead Dominique Merlande, Mental Health Law Manager

Contact details Dominique.merlande@candi.nhs.uk Tel:020 3317 7141

Accountable director

Dean Howells, Director of Nursing

Approved by (Group):

Mental Health Law Committee 9 April 2019

Approved by (Committee):

Quality Committee

Document history

Date Version Summary of amendments

Feb 2006 1 New policy

Nov 2015 2 Full review to incorporate related changes in the Mental Health Act and the Human Rights Act

Apr 2019 3 Clarification of responsibilities for facilitating access + New Template

Membership of the policy development/ review team

Dominique Merlande, Mental Health Law Manager

Consultation

Mental Health Law Policies and Procedures Group

DO NOT AMEND THIS DOCUMENT

Further copies of this document can be found on the Foundation Trust intranet.

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Contents

1 Introduction

2 Scope of the Policy

3 Aims and Objectives

4 Duties and responsibilities

5 Definitions

6 Policy Content

7 Training

8 Dissemination and Implementation Arrangements

9 Monitoring and Audit Arrangements

10 Review of the Policy

11 References

12 Associated Documents

13 Appendices

Appendix 1: Equality Impact Assessment Tool

Appendix 2: Code of Conduct for Legal Representatives

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1. INTRODUCTION

This policy sets out:

to provide guidance to service users, inpatient staff, community teams and Mental Health Act Administrators in facilitating access to legal advice for service users subject to the Mental Health Act 1983;

procedures which comply with the Mental Health Act 1983 and the Human Rights Act 1998 and respect service users’ rights;

the Trust's expectations of standards of professional conduct by solicitors/solicitor firms staff whilst on the Trust premises;

to provide guidance to staff in cases where tensions may arise between the professional activities of solicitors/solicitor firms staff and of hospital staff.

2. SCOPE OF THE POLICY

This policy affects all staff who are involved in assisting service users who are subject to the Mental Health Act 1983 access solicitors e.g. Ward Nurses, Care Coordinators, Responsible Clinicians.

3. AIMS AND OBJECTIVES

This policy aims at providing guidance to service users, inpatient staff, community teams and Mental Health Act Administrators in facilitating access to legal advice for service users subject to the Mental Health Act 1983.

4. DUTIES AND RESPONSIBILITIES

The Chief Executive has ultimate responsibility for ensuring that mechanisms are in place for the overall implementation, monitoring and revision of policy. The Director of Nursing and People is the executive director responsible for this policy, but will delegate authority for the operational implementation and ongoing management of the policy to the Mental Health Law Manager. The Mental Health Law Manager is responsible for reviewing this policy every three years. The Associate Director, Governance and Quality Assurance, via the Clinical and Corporate Policy Manager, is responsible for ensuring:

Dissemination and implementation of the policy

Identification of any resource implications to enable compliance

Training and monitoring systems are in place

Regular review of the policy takes place. Associate Divisional Directors are responsible for implementation of the policy within their own spheres of management and must ensure that:

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All new and existing staff have access to and are informed of the policy

Ensure that local written procedures support and comply with the policy

Ensure the policy is reviewed regularly

Staff training needs are identified and met to enable implementation of the policy.

Each registered healthcare professional is accountable for his/her own practice and will be aware of their legal and professional responsibilities relating to their competence and work with the Code of Practice of their professional body. All Trust staff are responsible for ensuring that they:

Are familiar with the content of the relevant policy and follow its requirements

Work within, and do not exceed, their own sphere of competence.

5. DEFINITIONS

“Solicitor” is a qualified solicitor or any other solicitor firm personnel including paralegals, staff on work experience and unqualified staff.

6. POLICY CONTENT

6.1 Arrangements for service users to contact solicitors

6.1.1 Service users are entitled to have visitors on wards, and this includes solicitors acting professionally on their behalf. Sometimes service users may have their own solicitor whom they choose to contact directly. In some cases service users may have friends or family members who are solicitors and who may combine professional and social contacts with the service user. 6.1.2 In other cases, service users may need the assistance of Trust staff in identifying and contacting a solicitor e.g. the service user does not speak English as first language or has a disability. Mental Health Act related matters 6.1.3 The First-Tier Tribunal will expect service users to be legally represented at Tribunal hearings unless they decide to represent themselves and have capacity to do so. If the service user declines the offer of legal representation, it will be the responsibility of the multidisciplinary team (MDT) to establish whether they have capacity to make that decision or not. If they lack capacity to decide, the MDT will be responsible for carrying out a best interests assessment, in line with the Trust’s Mental Capacity Act policy, and to establish whether it is thought to be in the service user’s best interest that a legal representative be appointed on their behalf. If such is the case, the Mental Health Act Officer will liaise with the First-Tier Tribunal and request that they exercise their power under Rule 11 of the Tribunal Procedure Rules 2008 to appoint a legal representative on the service user’s behalf. A health or social care professional familiar with the patient will be required to complete an MH3 form for the attention of the First-Tier Tribunal.

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6.1.4 There is no equivalent to Rule 11 of the Tribunal Procedure Rules 2008 for Associate Hospital Managers. Therefore if the service user lacks the capacity to decide whether to appoint legal representation/represent themselves at the hearing, the Trust, and by implication its Associate Hospital Managers and Mental Health Law Hub staff, will not be in a position to appoint a legal representative on the patient’s behalf. In those circumstances, a referral to the IMHA service should be considered. The Mental Health Law Hub will advise the Responsible Clinician accordingly.

Trust List of Mental Health Solicitors 6.1.5 The Trust maintains a list of mental health solicitors who have been approved to provide legal representation. Solicitors wishing to be included on this list should be advised to apply in writing to the Mental Health Law Manager who will consider their application. 6.1.6 The minimum criteria for inclusion on the list are:

the solicitor has been approved by the Legal Aid Authority to undertake mental health work under the legal aid scheme;

the solicitor has been accredited by the Law Society as a specialist in mental health.

6.1.7 In order to ensure that service users subject to the Mental Health Act 1983 are given access to the most up to date information about solicitors offering mental health law advice, the Mental Health Law Hub maintains the list, updates it on a regular basis and distributes it widely to all inpatient and community teams. The list is also available on the Trust intranet and public website. 6.1.8 The Mental Health Act Officers hold a copy of the Trust list of solicitors and will give service users access to this list in order to choose their own solicitor. The list is included in all correspondence sent by the Mental Health Act Officers to patients subject to the Mental Health Act 1983.

6.1.9 Mental Health Act Officers may assist service users in contacting solicitors on their behalf but may not choose solicitors on patients’ behalves. Mental Health Act Officers do not provide legal advice, but they can give general information about the legal aid scheme, for example, explaining that service users instructing an approved solicitor do not have to pay for legal work directly related to an appeal against detention, but that other work undertaken on behalf of the service user may not be covered by the legal aid scheme, or may be means tested within that scheme. 6.1.10 Neither the Mental Health Act Officers nor other Trust staff are in a position to provide information about solicitors not on the list, or those undertaking work outside the mental health field, but they will be supportive of any service user who wishes to identify and make contact with another solicitor of their choice who is not on the list. 6.2 Arrangements for solicitors to visit service users

6.2.1 The Trust does not allow solicitors to visit the wards unless they have an appointment to see a named service user at a suitable and previously agreed time. The Trust will not hesitate to make a formal complaint to the Law Society against any solicitor who appears to be seeking unauthorised entry to hospital wards with a view to touting for business, or who appears to be touting for business whilst visiting existing clients. As well as breaching Trust policies, attempting such contact is contrary to the Solicitors Regulation Authority’s Code of Conduct 2011 and to the Law Society’s

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Practice Note on Representation before Mental Health Tribunals 2015. Solicitors may not advertise their services on Trust premises. Appointment-Only Policy for Solicitors’ Visits 6.2.2 Solicitors should always liaise with ward staff (or community staff in the case of a CTO patient being seen on the Trust’s community premises) in advance of their visit, and make an appointment to see the service user at a suitable and agreed time. Only in exceptional circumstances will appointments be made out of office hours. Visiting Policy 6.2.3 Like all other visitors, solicitors are expected to follow the Trust's visiting policy, which is available on every ward. When entering any ward, solicitors must make themselves known to ward staff and, if meeting the service user in a professional rather than social capacity, they should make that known to the person in charge of the ward. 6.2.4 Any solicitor visiting the ward will be expected to identify themselves, to provide the details of the law firm to which they are attached and the name of the service user they have an appointment to visit. 6.2.5 Ward staff should not, however, seek to breach the solicitor's duty of confidentiality and the service user’s right to privacy by requiring details of the solicitor's business with the service user. It is the responsibility of ward staff to check with any service user being visited by a solicitor that the service user does wish to see the solicitor.

Requests from Individuals (other than the Service User) and other Agencies for Solicitors’ Visits 6.2.6 It is not acceptable for solicitors to seek entry to wards with the intention of making contact with service users who have not sought their services. 6.2.7 Sometimes, solicitors may be asked to contact service users by relatives or by voluntary or statutory agencies, such as an advocacy organisation, Social Services, the Court of Protection or a criminal justice agency. Occasionally such solicitors have a statutory duty to meet with the service user and, in these cases, they will give written details of their duties to the Trust in advance of their visit. In all other cases, nursing staff will inform the service user that the solicitor has been asked to contact them and by whom, and will find out from the service user whether they wish the meeting to go ahead. Direct Approaches from Service Users whilst on the Ward 6.2.8 It is recognised that other service users may sometimes approach a solicitor who is visiting the ward and seek their advice or services. Any solicitor visiting the ward should inform nursing staff if they are approached by any other service user in this way, before engaging in any detailed discussion with that service user. 6.2.9 Ward staff will then check with the service user whether they wish to meet with the solicitor and will inform the Mental Health Act Officer. Where contact with the service user has been agreed, ward staff will make a separate appointment for the solicitor to meet the service user. Access to a solicitor will never be denied, and time taken to make these checks protects both the service user and the solicitor concerned.

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Recording of Solicitors’ Visits 6.2.10 Ward staff will routinely include a record of any solicitor's visit in the service user’s care record and, in addition, will inform the service user’s consultant if they are informed that the solicitor's visit concerns or is relevant to the service user’s clinical care. 6.3 Patients who may not be well enough to meet with a solicitor

6.3.1 It is the responsibility of ward staff to advise the solicitor if, in their opinion, the service user is so unwell that they could not understand or cooperate in a meeting with a solicitor, or if such contact is likely to be detrimental to the service user's clinical condition. Ward staff should also make clear to the solicitor if the service user is so disturbed that they might pose a risk to the solicitor. In any of these instances, postponing the meeting should be considered. 6.3.2 If the solicitor and the service user both wish the contact to go ahead, against the advice of staff, the service user’s consultant should be informed and a senior manager must be contacted who will assess the situation and seek to resolve the issue with regard to all the circumstances applying at the time, including:

the service user's clinical needs and the Trust's duty of care to the service user;

the resources available on the ward, for example to ensure the safety of a visiting solicitor;

the urgency of the situation, for example, the imminence of a First-Tier Tribunal/Associate Hospital Managers hearing or of any other legal proceedings of significance to the service user (e.g. a child custody or eviction case);

the legal status of the service user and the role in which the solicitor is acting. 6.3.3 If, after a full discussion, the senior manager is not able to resolve the issue, then it should be referred to the Head of Clinical Governance, who may take legal advice on how to proceed.

6.4. Access to service users’ care records

6.4.1 Service users are free to show their solicitor any document which they have in their possession, such as a copy of their own care plan.

Trust’s Access to Records Policy 6.4.2 The Trust’s policy on access to records allows local teams to give solicitors access to service users’ care records and other confidential documents in certain circumstances. All of the following conditions must be met before staff may give solicitors access to a service user’s notes: consent has been explicitly given in writing by the service user; there are no concerns about whether the service user has capacity to provide the explicit consent at the time that it is given and such consent has not been withdrawn later; the records to be supplied do not contain any information provided by or about a third party who has not consented to the disclosure of that information;

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the records to be supplied do not contain any information that would be harmful to the mental or physical health or significant interests of the service user; either the service manager, ward manager, team manager, or the Data Protection Officer has been notified. 6.4.3 If the conditions above are not all met, or staff have any concerns about disclosing information to a solicitor, they should contact the Trust’s Data Protection Officer to deal with the request. The Data Protection Officer can be contacted on information.request@candi.nhs.uk, or through the Information Team at Trust headquarters at St Pancras Hospital. Costs of Photocopying

6.4.4 If, with the service user's permission, the solicitor wishes to take copies of any of these documents, the expenses of such copying will be borne by the solicitor. Copies of all reports to Tribunals are in any case sent to a service user’s legal representative by the Tribunals Service free of charge. 6.4.5 Solicitors wishing to take photocopies of service users’ care records should be notified that the charge made for photocopying by the Trust is 15p per page. Copies totaling fewer than 50 pages will be provided free of charge, and charges will not exceed a maximum of £50. Any charges must be paid in advance by cheque (made out to Camden and Islington NHS Foundation Trust) and sent to the Data Protection Officer. Copies of records will only be supplied after the cheque has been received. 6.4.6 Alternatively, and provided that they have secure email, solicitors may request from the Mental Health Law Hub that section papers get emailed to them in preparation for a hearing. If in any doubt about whether the email address provided by the solicitor is secure or not, the Mental Health Law Hub should not send the papers electronically. Documentation for Service Users Subject to the Mental Health Act 1983

6.4.7 Where a detained service user gives written consent to disclose confidential documents, this will be kept by the Mental Health Act Officer, and a copy will be retained in the service user's notes. 6.4.8 Mental Health Act Officers will be responsible for checking that the conditions listed at 8.2 above are met (relying on the advice of the patient’s Responsible Clinician for conditions 2, 3 and 4) and for notifying the Ward/Team Manager once access has been granted. Facilitating Access 6.4.9 Actual access to the records will be facilitated by the Ward Manager on the ward for inpatients and by the Community Team Manager in the community for CTO patients. Solicitors will be expected to make an appointment with the Ward/Community team to access the records so that this can be facilitated in the best conditions.

6.5 Solicitors’ attendance at clinical meetings

6.5.1 Advocacy services are available for service users requiring an independent advocate at CPA/Section 117 meetings, and it is not normally necessary for such advocates to be legally qualified.

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6.5.2 If, in exceptional circumstances, the service user wishes their solicitor to attend such a meeting, he or she should give written consent to this, and the solicitor should provide a copy of this consent. A solicitor's attendance at such meetings will not normally be covered by legal aid, and the onus would be on the solicitor to inform the service user in advance whether he or she will be charged for this service. 6.5.3 Although the Trust will, as far as possible, accommodate the service user's wishes, clinical meetings are not judicial proceedings, and the service user has no automatic right to be legally represented. Solicitors who are allowed to attend such meetings are expected to behave in a manner that is appropriate to the nature and purpose of the meeting. 6.5.4 The final decision on whether a solicitor will be admitted to such a meeting rests with the service user's consultant and the clinical team. It is recognised that solicitors find these meetings helpful to prepare for First-Tier Tribunal or Associate Hospital Managers’ hearings. Therefore staff are encouraged to respond sensitively to such requests.

7. TRAINING

7.1 Training on this policy will be provided by the Mental Health Law Hub.

8. DISSEMINATION AND IMPLEMENTATION ARRANGEMENTS

8.1 The Associate Director, Governance and Quality Assurance, via the Clinical and Corporate Policy Manager, will disseminate the policy alerting staff to commence implementation process. 8.2 The Mental Health Law Manager will disseminate the policy and appended code of conduct for solicitors to all firms listed on the Trust’s solicitors list once a year. 8.3 For clarification or support in the implementation of the policy, contact Dominique Merlande, Mental Health Law Manager.

9. MONITORING AND AUDIT ARRANGEMENTS

9.1 Compliance with this policy on both staff and solicitors’ parts will be monitored by the Mental Health Law Manager. 9.2 Issues around compliance will be reported to the Mental Health Law Monitoring Group, which reports to the Mental Health Law Committee.

Elements to be monitored

Lead Method for monitoring compliance

Frequency Reporting

Parent Committee

Compliance with policy on both staff and solicitors’ parts

Mental Health Law Manager

Datix incidents and complaints

Every 2 years

Mental Health Law Committee

Quality Committee

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10. REVIEW OF THE POLICY

The review date will be three years from the date of ratification. If the review date is earlier or later than two years, a justification for this will be provided.

11. REFERENCES

Mental Health Act 1983

Law Society’s Practice Note on Representation Before Mental Health Tribunals 2015

Solicitors Regulation Authority’s Code of Conduct 2011

Tribunal Procedure Rules 2008

12. ASSOCIATED DOCUMENTS

Trust’s Visiting policy

Trust’s Access to Records policy

Trust’s Consent to Examination and Care policy

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Appendix 1

Equality Impact Assessment Tool

Yes/No Comments

1. Does the policy/guidance affect one group less or more favourably than another on the basis of:

Race No

Ethnic origins (including gypsies and travellers) No

Nationality No The policy provides for assistance

to be given to service users whose first language is not English.

Gender No

Culture No

Religion or belief No

Sexual orientation including lesbian, gay and bisexual people

No

Age No

Disability - learning disabilities, physical disability, sensory impairment and mental health problems

No The policy provides for assistance to be given to service users with disabilities.

2. Is there any evidence that some groups are affected differently?

No

3. If you have identified potential discrimination, are any exceptions valid, legal and/or justifiable?

N/A

4. Is the impact of the policy/guidance likely to be negative?

No

5. If so can the impact be avoided? N/A

6. What alternatives are there to achieving the policy/guidance without the impact?

N/A

7. Can we reduce the impact by taking different action?

N/A

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Appendix 2

Code of Conduct for Legal Representatives In order to protect our vulnerable patient group and their confidentiality, the following safeguards will apply to all legal representatives visiting any ward or unit within Camden and Islington NHS Foundation Trust.

As per the Department of Health guidance on confidentiality, information about a patient should not

be disclosed without the patient’s consent.

On arrival at the ward solicitors/legal representatives will be required to report to reception to sign

the visitor's book. They will be required to identify themselves, their firm, which patient and which

ward they are proposing to visit.

The relevant ward will be notified by reception that the patient has a visit from their solicitor/legal

representative – so the appropriate arrangements may be made.

The ward will permit access to that patient and no other, unless the solicitor is already acting for

that other patient.

Each ward will maintain a diary and patients and solicitors will be encouraged to make any follow-

up appointment and note it in the diary (rather than just dropping in).

Solicitors/legal representatives are discouraged form simply “chatting” with patients and staff on

the ward and are asked to leave as soon as they have completed their appointment.

Solicitors/legal representatives are reminded that they are permitted to enter the hospital to attend

appointments with their clients and to go direct to the relevant ward or wards. They are not

permitted to access other parts of the hospital.

Solicitors/legal representatives wishing to meet the MHA Officer at the site should do so, either by

prior appointment, or by seeking to make an appointment with them when reporting to reception.

The Trust does not condone any solicitor seeking to obtain clients, other than in accordance with

the Law Society’s Practice Note on Representation before Mental Health Tribunals.

Legal Representatives should not request

Legal Representatives need

Access to the ward to see a patient:

- who is not their client - who they do not have an appointment with

To have an appointment with a named patient No solicitor/legal representative should be allowed to wander and approach other patients for business.

To see the notes/information about a patient’s care without due authority.

To request access to records as per trust policy and to notify the Ward/Team Manager or Data Protection Officer when visiting to peruse records.

Access to the nurses office

Any queries please contact the C&I Mental Health Law Hub

MHL.Hub@candi.nhs.uk