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Taking care

Lee Parkhill 146x219Lee Parkhill, a barrister at leading set 4-5 Gray’s Inn Square, has previously worked for a regulator of social care providers, the largest local authority in the country and a major law firm. He tells Local Government Lawyer about moving to the Bar and why he practises health and social care law.

Born and brought up in rural Herefordshire, Lee Parkhill is the first member of his family to practise law. After an A-Level in the subject had stirred his interest, he won a place at Cardiff University’s law school – a choice that was to have a major impact on his subsequent career path.

“It was a great place to begin, given the kind of work I do now,” he says. “Professor Luke Clements was one of my tutors and he writes the bible for health and social care law (Clements’ Community Care and the Law). There are other people there who specialise in mental health law. And at the time I started Professor Andrew Grubb, a leading academic on medical ethics and the law, was head of the law school.”

After completing his degree, Parkhill spent a year as a legal assistant at the National Assembly for Wales handling health and social care work, while also completing his Bar Vocational Course and subsequently being called to the Bar (Inner Temple, 2005).

A move to the Commission for Social Care Inspection (since replaced by the Care Quality Commission) to be a regional legal adviser followed in 2006. “That involved advising on enforcement action against care home providers, children’s home providers and domiciliary/home care providers,” he explains. “So I was advising on a full range of the Commission’s functions, whether regulating who could set up those sorts of businesses, regulating the quality of the services that they provided or taking civil or criminal enforcement action against them.”

In 2007, Parkhill joined Birmingham City Council, something which he readily admits to have been “a baptism of fire”. But it was also a good time to join the largest local government organisation in Europe and the largest in-house legal team in the UK. It gave him the chance as well to qualify as a solicitor.

“The legal department had a huge amount of work,” he explains. “I was one of the first members of a team of lawyers specialising in adult social care and I believe Birmingham was one of the first local authorities to have a dedicated team in this area. It was set up by Charmaine Murray, Head of Adult Services & Human Rights, who is still there today running the adults team.”

Up until then adult social care and mental health work had been – and in some legal departments might still be – an add-on to other areas of work such as general litigation or children’s social care. Juggling two or more different roles in this way has been increasingly hard to sustain, argues Parkhill.

“With the increasing complexity of adult social care law, the advent of litigation in the Court of Protection, the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards – even before the more recent surge in work in that particular area of law following the Supreme Court ruling in Cheshire West – it’s a discipline that can’t easily be dealt with by people who aren’t given the time to specialise,” he says.

The budgetary pressures that local authorities have been – and will continue to be – under and the associated need to make savings has also generated growing amounts of legal work for councils.

Parkhill points to the flurry of cases around changes to provision (such as closure of day care centres or withdrawal of transport services), eligibility thresholds, and care home providers’ fees. “This has demonstrated that it is an area where it is difficult to proceed without really knowing what you are playing with. A number of local authorities have got into difficulties in trying to cut their adult care budgets and a huge amount of time has been spent on all sides litigating those issues.”

He adds: “There are more people calling on less money; there are more people arguing about how the duties should be performed. And there’s generally more focus on local authorities’ role in delivering care with an ageing population and people having increasingly high expectations – and rightly so – of what they want from social care.”

After Birmingham Parkhill swapped in-house practice for a senior solicitor role at Mills & Reeve, where for more than three years he principally advised NHS bodies as part of the law firm’s healthcare team.

“It was great to be in an environment where although we largely had one type of client (NHS bodies), we had a variety of client organisations,” he said. “We also did some work for the care home regulator (the Care Quality Commission). That was one of the great advantages of being in private practice – you had the opportunity to work now and again for a different type of client, to see things from a slightly different side.”

A desire to do more advocacy was growing, however. It was an itch that was hard to scratch at Birmingham or Mills & Reeve, he says. “Advocacy is a skill you have to keep using and developing. Working in-house or in private practice and running cases, it is often difficult to devote the time away from the office.”

This eventually saw him reach the conclusion that a career at the self-employed Bar was something to aim for, as a way of combining those things he liked in private practice – including having a more varied client base – and the ability to conduct more advocacy.

Parkhill says he chose 4-5 Gray’s Inn Square as his destination because of its history of public sector practice and its reputation for local government work. “It made it the obvious choice for my career at the Bar, with the opportunity to work alongside leading QCs such as Tim Straker and Richard Clayton.”

After a difficult period in early 2013 when a number of barristers left for rival sets, the chambers consolidated and is now growing again, with new arrivals in the last year both at QC and junior levels. “Alongside people like me who do more traditional public law work, we also have an increasing number of members who handle commercial public sector work,” Parkhill says. “This is very helpful and reflects what our local authority clients are having to do in areas such as outsourcing and procurement (and the legal challenges to these arrangements).”

One of the best things about being at the Bar, he says, is the variety of work and the unpredictability. “­You can never be quite sure what is going to land on your desk next, what type of problem will come up that you are going to have to deal with, probably at short notice.”

It is essential to have a strong relationship with the clerks and other staff, he adds. “Our director of policy, Steven Newbery, leads on the promotion of chambers and he has taken time to get to know the various sectors we have here such as the public sector practice. We also have John Lister, Chambers Director, and Stephen Broom, the senior clerk, who have also taken time to talk to us, the barristers, about the kind of work we do and what our clients are like and what they need, so that they can be that supportive interface. We have got a responsive team so that there are no hiccoughs when people are instructing us. They make that process as easy as possible. It is working well.”

In Parkhill’s key areas of practice, the Supreme Court’s landmark ruling in Cheshire West, which meant thousands more individuals were considered to be subject to a deprivation of liberty than had previously been thought to be the case, has created a surge in workload for the set.

He says it will be interesting to see how the subsequent ruling by the President of the Court of Protection, Sir James Munby, in which he sought to streamline the handling of cases post-Cheshire West, pans out.

“Practitioners on the ground are still waiting to see what that will mean in practice and how it will directly affect what local authorities are expected to do….Nothing is going to change the fact that there is still going to be a huge amount of work to be done to become compliant following the Cheshire West decision. There is no getting away from that.”

Another major prospective development in the field will be the Care Act 2014. “The Act is undoubtedly going to assist by clarifying and streamlining the law but it is a huge piece of legislation with new duties and new structures,” suggests Parkhill. “Whatever the intention may be, new legislation invariably leads to questions and litigation. It is not a panacea; it won’t be the answer to all the problems. In relation to the new duties, there are bound to be questions around compliance and the extent to which local authorities and also providers are meeting those new duties. While some areas that have previously been hotbeds of litigation may be addressed, there are bound to be others that crop up by virtue of there being new law.”

Although his main area of work is in the Court of Protection, Parkhill’s practice also encompasses judicial review challenges in the High Court and special educational needs cases in the tribunals. He has also been part of a team led by Straker advising on the electoral law of a foreign jurisdiction. “Being round people like Tim gives great opportunities for juniors to get involved with that quality of work.”

Two thirds of his work is from local authorities or other public bodies, with the remaining third coming via instructions from corporate organisations or individuals. “Within that third there’s a mix of legal aid work for individuals against local government or the NHS,” Parkhill says. “As people often say, one of the advantages of being at the Bar and working for both sides of the client group, you get to know all the issues you are going to face. It enhances your practice when you go back and work for the public body in the future. You have seen the pitfalls that people have fallen into.”

Health and social care law ranks – along with child protection – as among the most important work that lawyers can do, he agrees. It is also an area under the spotlight following infamous cases such as Winterbourne View and – in Parkhill’s view, unfounded – media accusations that the Court of Protection is ‘secretive’.

“Cases in this area tend to be ones where everyone has an interest in or an opinion on them because they are cases that matter about very basic things – about decisions about what should happen to mentally incapacitated people, about the amount of care we give to people when they are disabled or elderly,” Parkhill concludes. “They are cases that matter to individuals and that makes the work interesting and rewarding.”