Impact of Mazur on Mental Health Law?

Law and practice Other
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Does anyone have any strong views about whether the Mazur ruling has any impact on casework in MH law? I’ve seen some departments that don’t have a regulated person (either ILEX or panel accreditation only) so it seems of quite high importance to many firms.

In my mind the relevant issues are:

  • Rights of audience (s.1(a)) under s.12 LSA isn’t an issue as it’s a panel-accredited model.

  • However, Conduct of litigation (s.1(b)) seems to be quite broadly defined as initiating or continuing “legal proceedings” in general, which must include tribunal proceedings.

  • Tribunals are included in the definition of “court” as per s.207 LSA.

  • There doesn’t appear to be any relevant exemption under Schedule 3 LSA.

If the above is correct (and please do tell me if anyone disagrees) - then we’re in quite a bizarre situation where an “unauthorised” panel-accredited caseworker could represent at the substantive hearing but not themselves submit an initial application or any case management request.

The panel model might infer that an accredited person could do both those things, but the LSA is primary legislation & unless there’s any delegation to the Law Society (which would be very unlikely as it’s an independent body rather than a regulator), their input doesn’t mean much.

… or am I opening a can of worms even bringing this up?

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I’d be very interested in views on this one also!

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I’ve not read Mazur, and the only thing I’ve read about it is an article this afternoon (Neil Rose, ‘Mazur: LSB to review past guidance issued on litigation rights’ (Legal Futures, 13 October 2025)). But sometimes it’s interesting to learn by being corrected. This is an interesting quotation (in the article) from someone who represented the Law Society in the case:

“In many cases it may be hard to discern the practical difference between an unauthorised person assisting an authorised person conducting litigation, which is permissible, and an unauthorised person conducting litigation under supervision, which is impermissible.

“The key is that the authorised person takes responsibility for the conduct of the litigation.”

Our tribunal rules in both jurisdictions refer to “representative” and “legal representative”, and the definition of legal representative covers solicitors, barristers and legal executives. The only major difference in the rules is that the tribunal is required only to appoint a “legal representative”.

I used to think that requirement just arose from a concern about quality. Around that time the tribunal was sufficiently concerned about it that the LAA would have introduced compulsory panel membership if the Law Society could have guaranteed enough members. The requirement only to appoint legal representatives seemed to be a half-way house.

Also, it never made me think that tribunal work was “litigation” in LSA 2007 terms, probably because the tribunals used just to be part of the Department of Health, the rules say that “[a] party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings”, and the LAA and tribunal are happy when a paralegal conducts a case.

On the other hand it might be said that, especially as the new rules coincided with the great tribunal empire building, maybe the requirement only to appoint legal representatives arose from a recognition that tribunal work is litigation (despite that recognition having no effect on what we all thought about the matter for the last 18 years).

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Hmm. I think with the advent of the Courts & Tribunals system, one would be hard pressed to argue that the very broad term of “litigation” doesn’t encompass MH & COP. Insofar as allowing “representatives” - I suppose that’s similar in general civil proceedings to LiPs and McKenzie friends, but obviously more flexible to account for that need.

Given the biggest practical risk in not complying with Mazur is the costs implications which are absent from this field - I’m not sure firms would be scrutinised unless the Lexcel criteria change to account for it, and many might opt to assume MH isn’t included and carry on as they were.

Regarding the “authorised person” - I think it’s been accepted now that certain steps such as issuing proceedings & signing pleadings in general litigation must be completed by an authorised person. If that is the case, then surely sending MHT applications & substantive CMR1s (not general date-changes) might fall under that umbrella too.

Broad questions for anyone coming across this thread - do we think guidance from the SRA & the Law Society is a necessity going forward? Has anyone changed their processes to account for Mazur?

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I’ve read Mazur now and the main relevant part seems to be this:

  1. … Mere employment by a person who is authorised to conduct litigation is not sufficient for the employee to conduct litigation themselves, even under supervision. The person conducting litigation, even under supervision, must be authorised to do so, or fall within one of the exempt categories. …

I’ve also had a look at the Legal Services Act 2007.

Section 12 LSA 2007 defines “reserved legal activity”. Mazur was just about litigation, but two relevant activities seem to be “the exercise of a right of audience” and “the conduct of litigation”.

Section 13 says that to be entitled to carry on each activity you need to be “authorised” or “exempt”, and various criminal offences are then set out.

Schedule 2, para 3 says:

3 (1) A “right of audience” means the right to appear before and address a court, including the right to call and examine witnesses.

(2) But a “right of audience” does not include a right to appear before or address a court, or to call or examine witnesses, in relation to any particular court or in relation to particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to exercise that right.

Schedule 2, para 4 says:

4 (1) The “conduct of litigation” means—

(a) the issuing of proceedings before any court in England and Wales,

(b) the commencement, prosecution and defence of such proceedings, and

(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

(2) But the “conduct of litigation” does not include any activity within paragraphs (a) to (c) of sub-paragraph (1), in relation to any particular court or in relation to any particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to carry on that activity.

I don’t really understand paras 3(2) and 4(2), but maybe they are our get out of jail free card since there never used to be any restrictions on MHT representation or advocacy.

Section 207 says:

“court” includes—

(a) a tribunal that was (to any extent) a listed tribunal for, or for any of, the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (functions etc of Administrative Justice and Tribunals Council) immediately before the coming into force of the repeal of that Schedule;

(b) a court-martial;

(c) a statutory inquiry within the meaning of section 16(1) of the Tribunals and Inquiries Act 1992 (c. 53);

(d) an ecclesiastical court (including the Court of Faculties);

Schedule 7, para 25 of the TCEA 2007 said this:

25 (1) The following are listed tribunals for the purposes of this Schedule—

(a) the First-tier Tribunal, and

(b) the Upper Tribunal.

The FTT (and so the MHT) is definitely a court for these purposes. The MHRT for Wales isn’t, though maybe the similarity and the word “includes” covers it. The Parole Board isn’t mentioned either.

Section 19 deals with exempt persons, and refers to schedule 3.

Schedule 3, para 1, in relation to rights of audience, says:

(2) The person is exempt if the person—

(a) is not an authorised person in relation to that activity, but

(b) has a right of audience granted by that court in relation to those proceedings.

(3)The person is exempt if the person—

(a) is not an authorised person in relation to that activity, but

(b) has a right of audience before that court in relation to those proceedings granted by or under any enactment.

Schedule 3, para 2 of the LSA 2007 says this about conducting litigation:

2 (1) This paragraph applies to determine whether a person is an exempt person for the purpose of carrying on any activity which constitutes the conduct of litigation in relation to any proceedings (subject to paragraph 7).

(2) The person is exempt if the person—

(a) is not an authorised person in relation to that activity, but

(b) has a right to conduct litigation granted by a court in relation to those proceedings.

(3) The person is exempt if the person—

(a) is not an authorised person in relation to that activity, but

(b) has a right to conduct litigation in relation to those proceedings granted by or under any enactment.

I think “any enactment” in this context probably includes the tribunal rules which are secondary legislation. Rule 2 of the English tribunal rules says:

“legal representative” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of that Act

Rule 11 says:

11 (1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.

The Welsh rules are similar, as are the Upper Tribunal rules, and in all of them “legal representative” is rarely even mentioned elsewhere in the rules. The main difference is the restriction on the tribunal’s appointment power:

11 (7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where …

So maybe:

  • Paragraphs 3(2) and 4(2) of schedule 2 mean our work doesn’t count as litigation in the first place.
  • Paragraph 4 of schedule 2 means the MHRT for Wales isn’t a court at all under the Act.
  • Under schedule 3, the tribunal rules exempt us from the requirement to be authorised.
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