Why cannot a patient choose their own solicitor?

name removed 23 Oct 2012 (Account suspended) made this Freedom of Information request to The Law Society
This authority is not subject to FOI law, so is not legally obliged to respond (details).


This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by The Law Society.

name removed 23 Oct 2012 (Account suspended)

7 April 2012

Dear The Law Society, Mr Turner MP for the Isle of Wight,
Information Commissioner,

Some weeks ago I wrote to the Law Commission with a Freedom of Information Request asking "Why cannot a patient choose their own solicitor?"

This is now subject of an appeal with the Information Commissoner.

How many of your lawyers are currently serving with the Law Commission? And what are their names, please? I ask as they are the policy-makers of our legal code advising Government and therefore I believe we should know their names, please.

I am a English Law Student with a specific interest in mental health law and access to legal representation by mental health patients and their rights.

In my FOI Request to the Information Commission, I asked the following questions:

Why cannot a patient choose their own solicitor?

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[2007]

b] under Section 2 of the Mental Health Act 1983[2007]
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[2007]
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[2007] - 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[2007] - 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[2007] 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[2007]
b]Section 3 of the Mental Health Act 1983[2007]
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[2007]?
[b]Section 3 of the Mental Health Act 1983[2007]?
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[2007]?
b] Section 3 of the Mental Health Act 1983[2007]?
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[2007]?

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[2007] 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[2007]

7] What regulations govern the rights of patients under Section 29 of the Mental Health Act 1983[2007] - 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 most grateful if
i] the Law Society can answer any and all of the above questions
ii] if the Law Society could assist me in rewording any of my questions so that the Law Commission could answer what they have said is not data but asking for opinion, whereas I believe that I have asked questions and clarified it in my follow-up set of questions asking for the specific laws and regulations.

I remain baffled by the argument produced that I have asked for legal opinion as that does not seem to square with what I was actually asking, as legal opinion can be data, as is shown for example in the Crown Prosecution website where legal opinion and guidance is given. Thus, it cannot be said that simply asking for the opinion is automatically barred under FOIAct 2000, I aver.

However, I do recognise that I am not a qualified lawyer, being only a law student, and, as such, I am coming to you for assistance.

Thank you very much for your help,

Yours sincerely,

[first name removed] [last name removed]

Campaigner for legal reform of ALL the mental health legislation in England Campaigner for liberty, truth and justice

Bob Stanley, The Law Society

1 Attachment

Dear Ms [last name removed]

 

Freedom of Information Request – Our Ref: FOI/BS/769

 

Thank you for your email dated 8 April 2012 to the Law Society’s
Information Compliance mailbox requesting information. I am treating this
as an information request under the Law Society Freedom of Information
Code of Practice ("the Code").

 

You have requested access to the following information:

 

“How many of your lawyers are currently serving with the Law

     Commission? And what are their names, please? I ask as they are the

     policy-makers of our legal code advising Government and therefore I

     believe we should know their names, please.”

 

“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[2007]

    

     b] under Section 2 of the Mental Health Act 1983[2007]

     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[2007]

     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[2007] - 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[2007] - 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[2007] 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[2007]

     b]Section 3 of the Mental Health Act 1983[2007]

     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[2007]?

     [b]Section 3 of the Mental Health Act 1983[2007]?

     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[2007]?

     b] Section 3 of the Mental Health Act 1983[2007]?

     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[2007]?

    

     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[2007] 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[2007]

    

     7] What regulations govern the rights of patients under Section 29

     of the Mental Health Act 1983[2007] - 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 most grateful if

     i] the Law Society can answer any and all of the above questions

     ii] if the Law Society could assist me in rewording any of my

     questions so that the Law Commission could answer what they have

     said is not data but asking for opinion, whereas I believe that I

     have asked questions and clarified it in my follow-up set of

     questions asking for the specific laws and regulations.

    

     I remain baffled by the argument produced that I have asked for

     legal opinion as that does not seem to square with what I was

     actually asking, as legal opinion can be data, as is shown for

     example in the Crown Prosecution website where legal opinion and

     guidance is given. Thus, it cannot be said that simply asking for

     the opinion is automatically barred under FOIAct 2000, I aver.

    

     However, I do recognise that I am not a qualified lawyer, being

     only a law student, and, as such, I am coming to you for

     assistance.”

 

 

The Law Society is not covered by the Freedom of Information Act (the
FOIA) as it is not a designated authority, but has adopted its own
voluntary Code of Practice which closely reflects the FOIA. The Code may
be found at:

 

[1]http://www.lawsociety.org.uk/documents/d...

 

I am currently dealing with your request and will aim to respond formally
by 9 May 2012 which is 20 working days from the receipt of your request.

 

Yours sincerely

 

 

Bob Stanley
Information Compliance Manager - Legal Services
The Law Society, 113 Chancery Lane, London WC2A 1PL
t: 020 7242 1222 (x4117)
f: 020 7320 5685
[2]www.lawsociety.org.uk
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name removed 23 Oct 2012 (Account suspended)

10 April 2012

Dear Mr Stanley, The Law Society,Mr Turner MP for the Isle of Wight,

Thank you very much for your speedy response and for accepting my request for information under the Code as opposed to FOI Request.

This is very welcome.

With best wishes,

Yours sincerely,

[first name removed] [last name removed]

Campaigner for legal reform, liberty, truth and justice

Joao Curro, The Law Society

1 Attachment

Dear Ms [last name removed]

 

Freedom of Information Request – Our Ref: FOI/BS/769

 

Further to my email of 10 April 2012, please find below the response to
your information request under the Law Society Freedom of Information Code
of Practice ("the Code").

 

You have requested access to the following information:

 

 

    “How many of your lawyers are currently serving with the Law

     Commission? And what are their names, please? I ask as they are the

     policy-makers of our legal code advising Government and therefore I

     believe we should know their names, please.”

 

 

According to our system there is no record of solicitors working for the
Law Commission. The Solicitors Regulation Authority (‘SAR’) regulates
solicitors in England and Wales. The SRA does not hold records of
employment for solicitors who are not practicing and therefore do not hold
a practicing certificate, barristers, licensed conveyancers or other legal
professionals.

 

I suggest you contact the Law Commission directly. Please find below the
link to the Law Commission Freedom of Information web page

 

[1]http://lawcommission.justice.gov.uk/free...

 

 

 

    “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[2007]

    

     b] under Section 2 of the Mental Health Act 1983[2007]

     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[2007]

     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[2007] - 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[2007] - 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[2007] 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[2007]

     b]Section 3 of the Mental Health Act 1983[2007]

     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[2007]?

     [b]Section 3 of the Mental Health Act 1983[2007]?

     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[2007]?

     b] Section 3 of the Mental Health Act 1983[2007]?

     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[2007]?

    

     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[2007] 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[2007]

    

     7] What regulations govern the rights of patients under Section 29

     of the Mental Health Act 1983[2007] - 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 most grateful if

     i] the Law Society can answer any and all of the above questions

     ii] if the Law Society could assist me in rewording any of my

     questions so that the Law Commission could answer what they have

     said is not data but asking for opinion, whereas I believe that I

     have asked questions and clarified it in my follow-up set of

     questions asking for the specific laws and regulations.

    

     I remain baffled by the argument produced that I have asked for

     legal opinion as that does not seem to square with what I was

     actually asking, as legal opinion can be data, as is shown for

     example in the Crown Prosecution website where legal opinion and

     guidance is given. Thus, it cannot be said that simply asking for

     the opinion is automatically barred under FOIAct 2000, I aver.

    

     However, I do recognise that I am not a qualified lawyer, being

     only a law student, and, as such, I am coming to you for

     assistance.”

 

 

The Law Society represents solicitors in England and Wales and does not
provide legal advice to members of the public. The above is not a request
for information held by the Law Society but rather a request for advice or
opinion.  Information consists of data that may be “held”, but advice is
the result of judgement and it is not “held” until it is formulated. That
being the case, the Code does not apply.

 

I hope the above information is of use and I am sorry I am unable to
assist you further on this occasion.

 

Yours sincerely

Bob Stanley
Information Compliance Manager - Legal Services
The Law Society, 113 Chancery Lane, London WC2A 1PL
t: 020 7242 1222 (x4117)
f: 020 7320 5685
[2]www.lawsociety.org.uk
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