Rule 11(7)(a) and lack of express instructions

Have you seen the recent case about this? IN v St Andrew’s Healthcare [2024] UKUT 411 (AAC).

After years of persuasion, the Legal Aid Agency eventually allowed representatives to claim Level 1 fee in limited circumstances when a patient refuses to engage following appointment (see LAA, ‘Civil news: mental health work change for tribunal appointments’ (21/3/23) and the two links from that page).

If the Upper Tribunal is right, then all we had to do all along was infer that the patient was instructing us to challenge the basis for detention, which would allow us to claim Level 1, 2 and 3.

I wonder what the Law Society and LAA think about this.

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Yes-I thought this was a very interesting case. Much as I like UTJ Church I am confused about the concept of acting on implied instructions. I think that was a step too far and he really should just have stuck to criticising the MHT for failing to adjourn.

We always come off the record if we are appointed under R11(7) a and the client will not engage-although we make efforts to get the care Co to assist in contacting the client first. I will continue doing this until and unless LAA change the funding rules,

We’re due to check with our Contract Manager regarding this. The current LAA guidance for non-engaging Rule 11(7)(a)'s appears to cap out at Level 1 but the patient’s solicitor confirmed on LinkedIn she was able to claim Level 3 in this case.

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Personally, I do not think that would be approved by LAA. It contradicts their Rule 11(7) (a) rules.

The FTT hearing in IN was on 28/11/22. The new LAA rules about rumeration for rule 11(7)(a) cases where the patient doesn’t engage applies to appointments made on or after 21/3/23. I’m not offering my opinion on the case or whether that makes a difference but mention it in case it’s not been picked up by others who may (or may not) think that is relevant.

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Thank you for pointing that out Deborah-I had not noticed how old the case was.
I suppose it is significant as before the rule change you could only ask someone to sign the CW1 on an 11 (7) (a) appointment if you had instructions but patient could not sign for some reason, so I guess Kate accepted that she did have implied instructions at that point.

I think the Upper Tribunal is wrong on a couple of points. The first is that an appointment creates a retainer. This is really important.

This is perhaps somewhat understandable because they were under the impression that solicitors can get paid for attending a hearing without the client signing a legal aid form. We can’t and, unless the Tribunal are agreeing to meet our fees, we can not be there. My understanding, as pointed out by Karen Wolton, is that we can only claim a level 1 fee if the client will not engage at least to the extent of signing the paperwork, and that is a relatively new development.

A retainer is a legal contract between a solicitor and client and no one, whatever their rules might say, can create a contract on behalf of someone with capacity and without specific authority and it is particularly surprising that anyone would think they could when the client says they do not want representation. I do not consider a tick-box which may or may not have been filled in or understood by the client on an application form to be anything like proper legal authority. In any event, I can not see how acting for a client who does not want you to act for them and has the capacity to say so is not a conflict of interests.

The Tribunal would, in effect, be assuming the authority of the Court of Protection for clients with capacity. I can’t imagine circumstances in which it would happen, but they are purporting to make the client responsible for the solicitor’s fees if there is not a third-party indemnity from the LAA. There is no suggestion the client was incapable of signing a form, just unwilling.

This leads to the second and, even more surprising point that there was a dispute over what had been said in the Tribunal about the client’s wishes and, rather than turning to the recording, which is already in the hands of the Tribunal, a decision was made on the basis of who is more likely to have the best note. What is the point of recording hearings if they are never going to be used, even where the precise content is of vital importance?

There is an interesting subsidiary point if the Tribunal does think that it is creating a retainer, in that would come with quite a heavy burden on them to comply with GDPR. I don’t think they should even be sending out reports or requiring hospitals to do so until there is confirmation from a solicitor that they are acting. It is quite an egregious breach of confidentiality. They are probably also making themselves party to the contract or at least liable in law to be joined as a defendant if something goes wrong.

As to the decision itself, on the basis of the evidence they accepted, that the client had capacity, had communicated that they did not want to be represented and wanted the matter to proceed in their absence, I do not see how there is a problem with Rule 39 and the First Tier Tribunal were well within their rights to proceed, and the solicitor to leave. We’ve just got paper hearings for detained patients so they would never ever take place if the Upper Tribunal were right and there has to be some sort of ‘adequacy’ test. That comes, I suppose, from a representative having to confirm they have given advice and received instructions that the client does not want to proceed, but I don’t think the same safeguard applies with community patients. Might have to check that.

I think the whole issue of capacity in respect of giving instructions needs looking at and the approach that has been adopted is far too simplistic and often not well understood even by Responsible Clinicians but that is probably a discussion that could be held elsewhere.

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Having read the case again I agree with everything Sean has said. (Although maybe it was correct that the tribunal should have adjourned as this was the first time they had sat and the client did seem to want them to look at his case.)
Practitioners are now faced with either refusing R11(7)a altogether or turning up at the MHT (unpaid) where we can’t get instructions and seeking repeated adjournments until we do get them.
It seems that it would no longer be correct to accept them and then come off the record if we can’t get instructions which is what we do currently.

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I need to include this judgment as part of a Legal Action caselaw article, but the more I read it the more confused it all seems. I think UTJ Church is a breath of fresh air, especially as he seems to care about the patients, but I just can’t get my head round this decision. I’m struggling so much I’ve printed it out and will read it the old-fashioned way!

The “summary” part isn’t too hard, but in the “comment” part it’s difficult to say what it all means. Here’s what I have so far:

In March 2023 the Legal Aid Agency began to allow representatives, subject to specific requirements, to claim a level 1 fee when a patient refuses to engage following appointment under rule 11(7)(a) (see para 9.105 of the 2024 standard civil contract). The logic of the Upper Tribunal’s obiter guidance is that levels 1, 2 and 3 should have been payable all along, and the new Legal Aid provision is unnecessarily restrictive rather than generous.

Representatives should not be criticised for refusing to provide unpaid tribunal advocacy. The judge relied on paragraphs 74 and 75 of YA v Central and NW London NHS Foundation Trust [2015] UKUT 37 (AAC) as authority for the proposition that appointments “operate as a retainer”. That judgment was contrasting situations involving patients with or without capacity to provide instructions, and those paragraphs simply stated that the position of a solicitor acting for a patient with capacity to provide instructions, whether appointed by the patient or the tribunal, is effectively the same as that under any other retainer. It did not decide that a rule 11(7)(a) appointment creates a retainer in the absence of express instructions, and there is no other reason to believe this to be true. In the absence of a retainer, the idea that instructions should be inferred also disappears.

I’m not entirely sure I’m right, and it’s easier to retract here than it would be when in print, so please let me know what you think!

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Absolutely agree about UTJ Church, but I suspect he wasn’t in full possession of all of the facts, for example that an independent solicitor requires a retainer in order to act and, in my opinion, Tribunal Rules can not create a retainer which is a legal contract between a solicitor and client. I do not think that an appointment under Rule 11(7)(a) can create a contract (at least not between a solicitor and patient) and that the Law Society should have been alive to that and brought it to the attention of UTJ Church.

The position is perhaps muddied by the precise status of an appointment under Rule 11(7)(b), but the same considerations apply: I do not think that someone without capacity can be the client because they can not enter into a valid contract, whatever the Law Society might say about it in their practice direction and the Courts have said in YA (and other cases). That means that someone else has to be the client or we are not in a position to act. This needs examining properly with a clear focus on what an appointment actually is. My view is that it provides authority to approach a patient directly, which we would normally be allowed to do. That still leaves the problem of what happens if we are appointed under 11(7)(b) because we can not enter into a contract to act for a person without capacity to enter into a contract. We are not entering into a contract with the tribunal or anyone else so the only way we would be able to make representations is if we were joined as a party in that instance or as some form of litigation friend (although we can’t be appointed as a litigation friend currently in tribunal proceedings, so they would have to think of some other name for us). In the normal course of events, you would need to be instructed by someone with a power of attorney to represent a client without capacity to instruct you.

There is a real inclination to just ignore all of this because we don’t want to go messing up the status quo, now do we. However, I think it is important that this is clarified or it is all going to go horribly wrong at some point. For example,

  • if a Rule 11(7)(b) appointment does not create a contract with the client, who could the client sue if the solicitor is negligent in conducting their case or
  • how can we act at all in this situation?

My view is that the Rule needs looking at and re-writing to make it clear that an 11(7)(a) ‘appointment’ is simply a permission to approach a patient directly and an 11(7)(b) ‘appointment’ needs to be something completely different, for example joining the solicitor as a party to the proceedings. In both cases there would need to be discussion with the LAA as to how we get paid for this and on what basis.

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The 2018 Standard Civil Contract Specification states at 9.59 that

Regulations 22(3) and 22(4) of the Procedure Regulations set out when an application for Controlled Work can be made on behalf of a Client. Exceptionally, where it is not appropriate to use any of the possibilities for the application for Controlled Work to be made on the Client’s behalf and the Client will not sign the application due to their condition, then you may annotate the Application Form to that effect and a Supervisor may sign it.

In the case of IN the patient was in seclusion when I initially attended the ward. He was therefore unable to sign the Application Form due to his condition and the staff nurse signed it on his behalf. The form was annotated to that effect and a Supervisor signed it.

I had never thought of using para 9.59 for a patient who had refused to engage (incidentally, the 2024 specification has the same wording). I don’t think the LAA used to think it was possible either, based on Legal Aid Agency, ‘Contract management: mental health guidance’ (v5, 1 September 2024):

We have received feedback that in some circumstances clients refuse to engage with the representative appointed for them under these rules. This means that providers are unable to obtain a signed Controlled Work form for these client. We have, therefore, introduced provisions into the Category Specific Rules to deal with these cases.

Those new provisions were paras 9.105 to 9.109. They allow a level 1 fee, but preclude any other fees, for as long as the patient cannot be contacted or refuses to engage. As Deborah pointed out, they were added after your tribunal. Do you think the answer now is for the LAA to remove them?

9.108 Escape Fees do not apply to Claims made pursuant to Paragraph 9.105 and the Level 1 (Mental Health Proceedings) Fee is the only fee payable in any circumstances.

9.109 Where you do make contact with and receive instructions from a client following an appointment under paragraph 11(7)(a) of the Tribunal Procedure (first-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, Mental Health Fees described in Paragraph 9.66 will apply.

Logically, para 9.59 signatures and consequent payments apply equally in any situation where a patient does not engage or provide instructions so, to avoid abuse, should the contract also be changed to ensure that it can only be used after appointment by the tribunal?

I don’t think that the Upper Tribunal guidance (that a rule 11(7)(a) appointment creates a retainer between representative and client with implied instructions) is correct, but if it is going to be followed by the tribunal then representatives should not be expected to work for nothing.

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