Pressure points in the justice system – Part 3
In the last of four articles on access to justice in an age of austerity, Ellie Palmer and Laura Wrixon, of the Law School at the University of Essex, focus on barriers to justice in the areas of employment and mental health and the implications of government cost-cutting measures for vulnerable clients with multi-dimensional problems that might need to be addressed in different dispute resolution forums. The article reviews the findings of the fifth in a series of Economic and Social Research Council (ESRC) seminars, in which practitioners and academics assessed pressures on the system and discussed possible solutions.
Seminar five took place on 9 November 2012. It first focused on access to justice in the practice areas of employment and mental health. It then turned to a theme which had been prevalent throughout the seminars: the extent to which reforms under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have ignored the reality of multi-dimensional problem ‘clusters’ both from the perspectives of client needs and the ability of courts, practitioners and legal services providers to operate systems that are fit for purpose.
Barriers to justice in employment
Sarah Veale CBE, Head of the Equality and Employment Rights Department at the TUC, opened the first session. She argued that UK governments have failed to give due recognition to the positive functions of unions: the maintenance of legally conforming work practices and good employment relationships that would avoid the need for recourse to tribunals. Yet she had no wish to downplay the need for an accessible and effective dispute resolution system as a deterrent to illegal workplace practices and for the meaningful exercise of legal rights. She therefore expressed concerns about the introduction of fees in employment tribunals (ETs) and the increase in time limits for unfair dismissal, which would work to the advantage of employers and impact most severely on women and young people. This was a matter of particular concern since the government had sought to justify this change on the basis of unsubstantiated claims by employers that large numbers of workforce complaints arriving in tribunals are merely vexatious.
On the issue of fees, Sarah Veale, in agreement with Shona Simon (President of Employment Tribunals in Scotland), criticised the reform as an adverse incentive to continuing a claim once submitted. Moreover, Shona Simon was clear that a policy which requires only those who use the ET to pay for it fails to recognise that the purpose of the civil justice system is to benefit society as a whole; and the primary purpose of ETs is to secure improvements in the quality of working relations in the public interest. Thus, observing that employment is an integral component in a person’s life, bringing a sense of purpose, she emphasised the extent to which its disruption can result in emotional and mental health issues that frequently have multi-dimensional and long-term repercussions.
The session was closed by Dr Morag McDermont (Reader, University of Bristol) and Dr Nicole Busby (Professor, University of Strathclyde), who presented their results from a pilot study which had considered the support given by Citizens Advice Bureaux to unrepresented parties in employment disputes. Their results showed that applicants (even those with university educations) found the system overly formal, confusing and weighted in favour of represented employers. In conclusion, they outlined a much larger comparative project that will examine how unrepresented parties deal with employment disputes in the UK.1More information on the project, Advice agencies: new sites of legal consciousness. Citizens Advice Bureaux and employment disputes, is available at: www.bristol.ac.uk/law/research/centres-themes/aanslc/cab-project/.
Barriers to justice for vulnerable ‘adults with disabilities’?
In session two, John Horne (part-time mental health tribunal (MHT) judge with longstanding experience as a legal panel member on MHTs) provided a detailed overview of the functions of MHTs and their strengths and weaknesses from patient perspectives. He also considered the extent to which general cost-cutting measures in the tribunal system might affect MHTs as part of the new tribunal structure. He was, however, satisfied that, in relation to the MHT’s fairly circumscribed role concerning the detention of patients, article 5 of the European Convention on Human Rights could generally be relied on to resist interference with important procedural safeguards that have developed over time, including access to appropriate patient representation and to a reservoir of legal expertise in what was once a predominantly medical environment.
Following John Horne, Dr Nell Munro, lecturer in the Law School at the University of Nottingham, focused on the importance of identifying a growing constituency of vulnerable adults who might not fall under the traditional mental health banner. Historically, claimants have come into contact with the law in this area through the Mental Health Act (MHA) 1983 or the Mental Capacity Act (MCA) 2005. However, Dr Munro highlighted the growth of a non-statutory constituency of vulnerable adults on behalf of whom access to the High Court in judicial review or the Court of Protection might be sought, due to a range of impairments that could make them susceptible to undue influence or coercion (for example, in Re SA (Vulnerable Adult with Capacity: Marriage)
 EWHC 1681 (Fam), 28 July 2005;  1 FLR 867, a young woman who only spoke British Sign Language lacked the capacity to communicate in Bangladesh where she was to have an arranged marriage. She was placed under protection of the court). She suggested that, consistent with article 1 of the UN Convention on the Rights of Persons with Disabilities, the time has come to develop a definition that would include mental health within the concept of disability more generally.2Article 1 states: ‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’
Dr Munro stressed the importance of judicial oversight in this area, in view of worrying evidence of an increase in coercion of vulnerable adults in the UK. Although not available across the board, there is empirical evidence to show that since 2010 there has been an increase in the use of coercive practices across the NHS (the Care Quality Commission (CQC) annual census and the NHS mini data sets giving slightly different results: on CQC census day 2012, 42 per cent were detained, whereas the NHS found more than 50 per cent of patients experiencing coercion at some point in 2012).3See: Monitoring the Mental Health Act in 2011/12, CQC, available at: www.cqc.org.uk/sites/default/files/media/documents/cqc_mentalhealth_2011_12_main_final_web.pdf.
Thus, access to a court might urgently be needed to challenge the proportionality of a wide range of decisions and practices relating to the treatment of vulnerable adults, including the legality of their original or continuing detentions under the MHA, the proportionality of their treatment in hospital under the NHS, in community care, or in the community at large.
In conclusion, Dr Munro outlined various forums to which cases might be brought (MHTs, Upper Tribunal reviews from MHTs; judicial reviews of decisions made under the MHA; A–G review of admissions to hospital under MHA Part III (under order of criminal court); Court of Protection; inherent jurisdiction of the High Court regarding vulnerable adults), the difficulties of gaining access and the likelihood of success, depending on the nature of the application and whether it was framed in terms of a deprivation of liberty. In particular she focussed on the high incidence of failure for claimants with mental health issues in judicial review and agreed that there is an urgent need for further empirical research in this area.
Funding horses for courses or maintaining a system in chaos?4‘One size cannot fit all … We need much more of a horses-for-courses approach, more flexibility, more triage, more choice for individuals, more allocation to different types of people, different types of case, different types of circumstance’, Richard Thomas, chairperson, Administrative Justice & Tribunals Council, Reforming the courts and tribunals services – challenges for efficiency, technology and accessibility, Westminster Legal Policy Forum Keynote Seminar, 14 July 2011.
Introducing the final session, Linda Pearce (district judge, Lambeth County Court) gave a graphic account of the impact of the cuts on her ability effectively to perform her role as an independent adjudicator, mediating at arm’s length between equal parties. District Judge Pearce drew attention to a number of recent operational changes that have created further barriers to effective problem-solving for vulnerable unrepresented clients. These include modern contact centre approaches to handling simple court-centred questions; the removal of paper processing from the front line estate; the reduction in front desk counters; and counter openings between 10 am–2 pm. Thus, in addition to acting as an independent arbiter at the apex of the judicial system, District Judge Pearce has increasingly found that she is covering and managing at the base, to ensure that vulnerable unrepresented clients receive urgent pre-trial advice and assistance so that they can be directed to different dispute resolution forums if appropriate.
She suggested that in Lambeth a high proportion of clients present with multiple legal problems (housing benefit related; landlord and tenant; family related; consumer credit and debt; employment and mental health) which, had they been addressed by triage at an earlier stage, might have remained outside her courtroom. Moreover, although Lambeth has systems in place for redirecting clients to appropriate advice and assistance, or different dispute resolution forums now including MHTs or ETs, this may not be the case in other demographically disadvantaged areas. In sum, District Judge Pearce was clear that far from improving the system, recent cost-saving measures have compounded long-term failures of the UK government to prioritise resources effectively, by taking account of different types of people, cases and circumstances that the system should be aiming to serve.
The session concluded with a detailed analysis of the impact of the legal aid reforms by Philip Turpin, founding partner of Turpin & Miller, Oxford, a successful generalist practice, which from the 1980s onwards (through franchising, contracting and contingency legal aid funds) had been able to sustain an economically viable community service for vulnerable legally aided clients, who often had multiple problems. The presentation ended with a sobering account of gradual desk closures and the reflection that to provide a basic, single desk service for vulnerable clients, the firm would be working for nothing.
■ For further information about the ESRC seminar series 2011–2013 ‘Access to justice in an age of austerity: time for proportionate responses’, visit: www.essex.ac.uk/atj