Why cannot a patient choose their own solicitor?
name removed 23 Oct 2012 (Ataliwyd y cyfrif) made this Rhyddid Gwybodaeth request to General Council of the Bar
This authority is not subject to FOI law, so is not legally obliged to respond (manylion).
This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.
8 April 2012
Dear General Council of the Bar, Mr Turner MP for the Isle of Wight and the Information Commissioner,
A few weeks ago, I wrote to the Law Commission with a Freedom of Information Request: "Why cannot a patient choose their own solicitor?"
I wish to know who sits on the Law Commission that is from the General Council of the Bar? As the Law Commission is the policy-making advisory body to the Government I believe it to be very important that we know who is who, and if they are solicitors, barristers or what?
I am an English Law student with a particular interest in mental health law and patients' rights.
My Freedom of Information Request was rejected by the Law Commission on account of their saying that I was asking for legal opinion. I have appealed this to the Information Commission.
My Freedom of Information Request was as follows:
I am making a Freedom of Information of Request regarding patients.
Why are patients denied access to solicitors of their own choice? What regulations govern the rights of patients
a] under the Mental Health Act 1983
b] under Section 2 of the Mental Health Act 1983
where the patient is prevented from being allowed to continue to be represented by their chosen solicitor NOT because of being deemed to lack capacity by that solicitor, but on the grounds that the mental health trust objects to the fact that the patient's solicitor is a colleague of the patient's family member. Surely there is not ANY conflict of interest just because this is the case? Surely it would be an abuse of justice to stop a person from choosing a solicitor who is a colleague of his/her relative? For if the patient is compos mentis and simply wants someone they TRUST to represent them, why should not ANYONE be able to represent the patient's interests?
c] under Section 3 of the Mental Health Act 1983
where their Nearest Relative has been "de facto" displaced by dint of a 132 document stating that the Nearest Relative has been displaced and this has been lodged with the Mental Health Act officers of the mental health trust in question, and yet the Nearest Relative had NOT in fact been displaced, and the patient wanted and still wants his/her relative to be the NEAREST RELATIVE because he/she trusts this relative implicitly and wants their relative to be Nearest Relative but their wishes are overruled by the Local Authority deeming that a Displacement Action must go ahead, and supported by the Care Co-Ordinator Social Worker and AHMP [all one person] and the Responsible Clinician WITHOUT ANY HEED of the patient's own wishes until it gets to Court and the Judge rules that in fact it is wrongly construed to have only the Nearest Relative as the Defendant but should also be the patient as the Second Defendant.
d] under Section 58 of the Mental Health Act 1983 - where the patient has illegally been prevented due process of law and not consulted about the treatment which has to be done at the 3 month deadline but where the SOAD does not actually consult with the patient and the SOAD document actually proves that the patient's views were not recorded in writing even though the Care Quality Commission states that it is best practice so to do, and certainly is encouraged. But in the absence of this, is this not a fundamental breach of Human Rights?
e] under Section 29 of the Mental Health Act 1983 - where there is action taken against both the Nearest Relative and the Patient for Displacement by the Local Authority with their own choice of Nearest Relative, and ignoring the requests of other members of the family where the patient is deemed to be "vulnerable"
I believe that the Mental Capacity Act 2005 Section 44 is totally abused on account of it not being properly construed. It is a muddle. Nobody really knows who is "vulnerable" or what "mental incapacity" actually is as there are no longer precise mental health disorders but just a vagueness about a person who might have temporary psychosis being forcibly placed under the Mental Health
Act even though these are not compatible laws, the Mental Capacity Act seems to be misunderstood and therefore needs to be overhauled as it is now being used in Mental Health facilities in ways not originally deemed in the lawmakers. This was not helped by the new Mental Health Act 2007 where the DOLS just muddies the waters incredibly because it mixes the Mental Capacity Act 2005 with the Mental Health Act 2007 even though it is not possible to use the MCA2005 with someone who is under MHA1983 who is not
incapacitous, nevertheless unscrupulous prosecutors might seek to exploit loopholes to prosecute people who are innocent of any charge yet be deemed to be worse than rapists, murderers and rioters simply because they do not see things in the same way as others.
To me a "victimless crime" is very bad indeed.
If the so-called victim does NOT want a prosecution because the so-called victim does not believe any crime to have been done, then surely the CPS and Police and Courts should listen to that person rather than seek to prosecute innocent people whose only "crime" has been to care and protect and give every provision as the person has wished and asked for, and provided for a good life to their loved one. For which the loved one is most grateful and wishes to return home to their relative but that the Crown Court and CPS has other ideas because they want to prosecute come what may.
HUMAN RIGHTS ARE BEING TRAMPLED UPON ALL OVER THE PLACE AND IT IS ESSENTIAL FOR THE LAW COMMISSION TO ADDRESS THIS TERRIBLE CRIME OF THE MCA2005 44 CONTINUING IN ITS PRESENT STATE - YOU GOT RID OF THE NATIONAL ASSISTANCE 44 - SO SHOULD YOU GET RID OF THE MCA2005 44.
THAT IS MY PETITION.
REQUESTS FOR DATA:
1] What rules and regulations and Case Law govern patients' choice of solicitors when they are sectioned under
a]Section 2 of the Mental Health Act 1983
b]Section 3 of the Mental Health Act 1983
Please provide to me the rules and regulations covering these issues.
2] By what rules and regulations and Case Law is a Mental Health facility allowed to refuse to recognise the lawyer chosen by a patient held under
[a]Section 2 of the Mental Health Act 1983?
[b]Section 3 of the Mental Health Act 1983?
Please provide to me the rules and regulations covering these issues. Thank you.
3] By what rules and regulations and Case Law is a patient allowed to instruct a solicitor who happens to be a colleague of his or her relative?
Is there any distinction between a patient held under
a] Section 2 of the Mental Health Act 1983?
b] Section 3 of the Mental Health Act 1983?
Please provide to me the full rules and regulations covering these issues. Thank you.
4] [a] By what rules and regulations and Case Law is a patient allowed to instruct a solicitor who happens to be in the same firm of solicitors as the mental health facility they have been placed in?
[b] By what rules and regulations and Case Law is a mental health firm allowed to instruct a solicitor who happens to be in the same firm of solicitors as the patient has chosen to represent them?
c] By what rules and regulations and Case Law determines who has precedence in choosing if it is deemed a conflict of interest - is it the vulnerable patient who has been detained against their will and needs a friend at court - literally - or is it the detaining authority - the mental health trust? What rules and Case Law - if any - have clarified this please?
5] What regulations and rules and Case Law determines Nearest Relative defences by both the Nearest Relative and the Patient where the Local Authority seeks to displace the Nearest Relative against the will of the patient?
6] What regulations and rules and Case Law govern the following:
a] the rights of patients under Section 58 of the Mental Health Act 1983?
b] the rights of patients under Section 3 to be consulted about the treatment which has to be done at the 3 month deadline.
c] what rights does a patient have to make legal if this is not done?
d] How does a patient and/or their Nearest Relative and/or their legal representative and/or Advocate make legal complaint and what redress is there in law according to laws and rules and Case Law regarding flouting of the Section 58?
e] where the SOAD documentation proves that the patient's views were not recorded in writing - even though the Care Quality Commission strongly recommends this - what redress under rules and regulations and per Case Law does the patient held under Section 3 of the MHA1983 have by right?
f] what are the regulations governing a patient's Human Rights when detained under Section 2 or Section 3 of the Mental Health Act 1983
7] What regulations govern the rights of patients under Section 29 of the Mental Health Act 1983 - where there is action taken against both the Nearest Relative and the Patient for Displacement by the Local Authority with their own choice of Nearest Relative, and ignoring the requests of other members of the family where the patient is deemed to be "vulnerable"?
I would be very grateful to have any information that the General Bar Council can give me in answer to the above questions I asked the Law Commission. I believe that as I asked questions and clarified my questions to ask specific details as to what rules and regulations and laws governed specific rights of patients, I believe I was making a Freedom of Information Request. After all, the Crown Prosecution Service website has guidance and legal advice on their website and it is data. Therefore just because I am asking for information which may include opinion does not automatically make this not data under the FOIAct 2000, I aver. Because opinion can be data.
I would therefore be most grateful if you have any of the data requested in my FOI Request that I made to the Law Commission, and now to yourselves, and please post it to this whatdotheyknow website.
Thank you very much for your help,
[first name removed] [last name removed]
Campaigner for legal reform of ALL the mental health legislation in England Campaigner for liberty, truth and justice
Thank you for your email. The Bar Council's offices are now closed until Wednesday 11 April.
I will be checking emails sporadically.
Head of Communications
Dear Ms [last name removed],
Thank you for your message of 8 April with a copy of your appeal to the
Information Commissioner in response to the Law Commission’s refusal to
accede to your freedom of information request.
You have asked who sits on the Law Commission who is from the General
Council of the Bar. The short answer is nobody. You may, however, be
interested to know that two of the Law Commissioners are barristers:
Frances Patterson QC and Professor David Ormerod.
You can find out more about the composition of the Law Commission by
referring to the Law Commissions Act 1965, as amended. If you have not
already done so, you might also find it helpful to visit the Law
Commission’s website: http://lawcommission.justice.gov.uk/
Director of Representation and Policy
The Bar Council
289-293 High Holborn
London WC1V 7HZ
Direct Line: 020 7611 1369
Switchboard: 020 7242 0082
Fax: 020 7611 1352
The Bar Council – Integrity. Excellence. Justice.
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