The following Code contains a Statement of Good Practice for those Solicitors conducting Mental Health Tribunal work. It does not have the status of a Practice Rule but may be referred to for guidance in assessing whether a Solicitor's conduct meets the standard required of a member of the profession.
Article 1 - Seeking business
(a) A Solicitor shall seek or accept only those
instructions which emanate from the client properly given and
should not accept instructions given as a result of an inducement
or subject to any improper constraint or condition.
(b) A Solicitor shall not seek or accept instructions from a person who is in a hospital or other facility for the purpose of receiving care and treatment for mental disorder unless the solicitor has firstly been approached or contacted for that purpose by that person or by a third party who has the express authority of that person to do so.
(c) A Solicitor shall not directly exhibit or distribute in a hospital or other facility where persons receive care and treatment for mental disorder any material which promotes or advertises the services provided by the Solicitor and/or his Firm. Where a Solicitor seeks to have any such material exhibited or distributed in such a hospital or facility, the material shall be furnished by the Solicitor directly to the Managers of the hospital or facility to be dealt with by the Managers in terms of the protocols and procedures which exist for this purpose in the said hospital or facility.
Guidance re Article 1
This Statement of Good Practice is a reminder that a Solicitor is an Officer of the Court and as such has obligations and duties to the Court/Tribunal. It is a reminder that a Solicitor should always act properly when dealing with Mental Health Tribunal work.
It is essential that a Solicitor should at all times remain independent of the client, and that the Solicitor should be free to give appropriate legal advice. Accordingly no instructions should be accepted in circumstances where it could be alleged that inducements have been offered in exchange for instructions. No instructions should be accepted in circumstances where those instructions are subject, for whatever reason, to restrictions or constraints which compromise the Solicitor's freedom to give appropriate independent legal advice. It follows that a client should not be considered as a "friend" and that a Solicitor must always remain "at arms length" from the client. This will ensure that both the client and the Tribunal can be confident that the advice tendered by the Solicitor is impartial and independent.
A Solicitor should accept instructions only from the client directly and not from a third party. There may be circumstances in which a Solicitor is asked by a third party, for example Advocacy Worker, Mental Health Officer, medical or nursing staff, family member or friend of a person who is being treated for mental disorder to visit that person in hospital or other facility where that person is being treated. In such circumstances, it is the duty of every Solicitor to take reasonable steps to check that the third party has obtained authority from the person to contact the Solicitor.
Any instructions given as a result of an inducement by a third party on the Solicitor's behalf must not be accepted.
Solicitors are reminded of the terms of Section 31 of the Legal Aid (Scotland) Act 1986. Any contract of agency between a Solicitor and a client which is based upon any inducement may be illegal and may be subject to action in the Criminal or Civil Courts. Such contracts may also form the basis of a complaint of professional misconduct and may lead to disqualification in terms of Section 31.
Article 2 - Conflict of Interest
A Solicitor should not accept instructions from more than one party in respect of the same matter.
Guidance re Article 2
This Statement reflects the awareness which Solicitors have always had of the obvious potential conflict of interest that may arise when instructions are accepted from more than one party in the same case, even though that conflict may not arise, for example, on the basis that a Named Person and a patient may have a common position. Nevertheless, Solicitors should not place themselves in a position whereby they may obtain information confidential to one party to the process, which at the same time may affect or be at odds with or detrimental to the position perceived or adopted by another party.
Accordingly, when it becomes apparent to the Solicitor that he has received instructions from two or more parties in the same case, a Solicitor may accept instructions from one of those parties and any others must be told immediately that separate representation must be sought.
Article 3 - Preparation and Conduct of Mental Health Tribunal cases
A Solicitor is under a duty to prepare and conduct Mental Health Tribunal cases by carrying out work which is actually and reasonably necessary and having due regard to economy and efficiency.
Guidance re Article 3
It is essential at each stage of the conduct of a Mental Health Tribunal case that the necessary preparation is undertaken timeously. It is essential that a Solicitor shall use his best endeavours to discover all relevant information and evidence relating to the matters before the Tribunal, any substantive case for opposition thereto and the effectiveness and appropriateness of the patient's care plan. A Solicitor must remember that his primary duties are to the client and the Court/ Tribunal and ensure that the case is properly prepared and that there is no prejudice to the client.
Solicitors must be sensitive to the vulnerabilities of clients who have a mental disorder. Solicitors must not mislead or, by their actions or statements, lead such clients to have unreasonable expectations about the prospects or outcome of their case. Solicitors must not exert any pressure or undue influence on such clients to embark on a course of action which has no reasonable prospects of success and is unlikely to be of benefit to the client.
Every Solicitor should carry out these duties in a responsible and professional manner. With these duties uppermost in mind, the Solicitor must not view Mental Health Tribunal cases only as a means of financial enrichment.
For the purposes of cases which are legally aided, this Statement is declaratory of Regulation 17 (1) of the Advice & Assistance (Scotland) Regulations 1996. Regulation 17 (1) states that "Subject to paragraph (2) below, fees and outlays allowable to the solicitor upon any assessment or taxation mentioned in regulations 18 and 19 in respect of advice & assistance shall, and shall only, be -(a) fees for work actually, necessarily and reasonably done in connection with the matter upon which advice & assistance was given, due regard being had to economy, calculated, in the case of assistance by way of representation, in accordance with the table of fees in Part I of Schedule 3 and, in any other case, in accordance with the table of fees in Part II of Schedule 3 and (b) outlays actually, necessarily and reasonably incurred in connection with that matter, due regard being had to economy, provided that, without prejudice to any other claims for outlays, there shall not be allowed to a solicitor outlays representing posts and incidents".
Abuse of the Legal Aid system may be fraudulent and may be considered as professional misconduct, which may lead to disqualification under Section 31 of the Legal Aid (Scotland) Act 1986.
Any complaints can be dealt with in terms of Section 31 of the Legal Aid (Scotland) Act 1986.
Article 4 - Other Rules of Professional Conduct
A Solicitor should at all times comply with good professional practice on the ethics of the Solicitors Profession as set out in Practice Rules, other Codes of Conduct and Text Books on Professional Ethics.
Guidance re Article 4
The essence of Professional Ethics is such that it cannot be codified. Many texts provide guidance on the professional behaviour expected of Solicitors. Solicitors have a duty to inform themselves of these texts and to approach their work in a manner consistent with the principles of good ethical practice. A Solicitor acting outwith the terms of this Code may be called upon to justify his conduct.