SecretE-Diary - July 2012

Reflections on whether the Bar’s days as an independent referral profession are over

June 11, 2012: Where a man feels pain he lays his hand.
Dutch Proverb

A return to the Monsoon season together with overdoing it socially at a legal conference gave me a rather nasty chill, which has left one of those irritating coughs that will not quite go away. It is one of the peculiarities of human beings that whilst we are able to feel genuine sympathy for major disabilities, we simply cannot cope with minor medical irritations – either as patient or spectator.

Therefore, I decided yesterday that I should visit the quack. At my doctor’s surgery there are two kinds of reading material: one is in the form of rather basic posters with scary health tips and the other is in the form of light-hearted magazines, presumably to distract patients from fear of the impending consultation. We have only the latter in Chambers and have avoided police faces saying: “Don’t Steal!” or “Avoid Provocation!”

On the other hand, the medical profession has mastered its referral structure much better than the Bar. In my case a doctor could tell presumably that this was one of those hyper-sensitive throats following a chill. A small brown steroid inhaler and I could be packed off to Chambers safely. On the other hand, if I return in two weeks with the same nagging cough, the chances are I will be referred for x-rays or a scan or even a bronchoscopy. A third visit would make this inevitable. With the tests come the specialist consultants, and I would be transferred to their tender mercies until such time as the cause of the illness had been uncovered and I had received all available treatment or the medical profession had given up in bafflement.

And why would this be done? Because it is ingrained in the general practitioner’s very training. He or she understands and accepts the ambit and limitations of professional expertise and the need for referral at certain defined points to acknowledged experts in the field. And, to constrain the slightly less conscientious
practitioner, there is the General Medical Council to regulate whether appropriate referrals have been made.

When students of early twenty-first legal practice come to look at the corresponding referral mechanisms in publicly funded legal work, they will possibly be perplexed to discover how little of this referral ethos still exists in our world, particularly as publicly funded work includes people who are disadvantaged, less well-heeled and those with educational or social difficulties.

Adopting the medical analogy, we have no acknowledged recognition of what passes for a “condition” that requires referral to a barrister, or whether any condition would nowadays necessitate such a referral. At the same time, powerful forces act against referral: the financial interest of the referrer, and the lack of knowledge about referral by the client. Every patient a doctor sees has heard about consultants and knows he can ask to see one.

The profession has no rules as to what should necessitate such a referral and it is difficult to see whether the over-arching regulator has even recognized the issue, let alone considered guiding the profession and the public about it. Some even think that referral fees should be permissible, something so awful that it beggars belief that anyone claiming to act in the public interest could support it in a professional setting. And we have not even got on to the farce of costume confusion, now rampant in the Crown Court.

I told my doctor all this whilst he tried to stick what looked like an ice-lolly stick down my throat whilst wearing a baseball cap to which he had strapped a halogen light.

He beckoned me from the couch to his computer where a 3D anatomical model was revolving on his screen. He used his mouse to point to parts of my throat.
“You know your trouble?” he said. I looked vacant. “You talk too much!”
“You know what it is then?” I asked.
“You’ve got that curse of the gabbling professions - Clergyman’s Throat. Stop talking so much and it will get better!”

I travelled home relieved, but, this morning, the thoughts still nagged me, although I have kept the diary open and the mouth shut. If we still need a referral profession in law, then should not legal regulators be considering at the least when referral to counsel generally, and to leading counsel in particular, is appropriate and, indeed, necessary – particularly where vulnerable people are involved? On the other hand, if our day as an independent referral profession is done, isn’t it time we faced up to the fact? At the moment, in publicly funded law, we seem to have all the regulatory shackles of a referral profession and, increasingly, few of its advantages.

William Byfield is the pseudonym of a senior member of the Bar. Gutteridge Chambers, and the events that happen there, are entirely fictitious.