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Non-means tested legal aid restored for patients detained under Mental Capacity Act 2005

MoJ accepts principle that restoration is needed to satisfy Art 5(4) of ECHR

In the Court of Protection case of UF v A Local Authority & Ors (judgment forthcoming), the Ministry of Justice and Legal Aid Agency have effectively restored non-means tested legal aid in s21A MCA cases.

The problem had arisen as a result of paragraph 5(g) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, introduced in April 2013, which provides for exemptions to means testing including:

(g) legal representation in relation to a matter described in paragraph 5(1)(c) (mental capacity) of Part 1 of Schedule 1 to the Act to the extent that—

(i) the legal representation is in proceedings in the Court of Protection under section 21A of the Mental Capacity Act 2005; and

(ii) the individual to whom legal representation may be provided is—

(aa) the individual in respect of whom an authorisation is in force under paragraph 2 of Schedule A1 to the Mental Capacity Act 2005.

This fell foul of the comments made by Charles J in Re HA [2012] EWHC 1068 (CoP),  a case heard in February 2012, in which he stated:

"8. In a discussion with counsel for the Official Solicitor I have indicated that my present view is that in the context of an application under s. 21A the court should not, for example, extend a standard authorisation (even if it has the power to do so under s.21A), or somehow continue the statutory scheme, whilst it determines the application. Rather, my present view is that the court should exercise its own powers to hold the ring whilst it determines the application and therefore give appropriate interim authorisations of any deprivation of liberty and make appropriate interim orders. If, when it determines the application, the court concludes that the relevant person should live in a care home, or be in a hospital, then, it seems to me, that it should generally direct that the statutory DOLS scheme should apply again to any deprivation of liberty. That regime has checks and balances that generally should be preferred to review by the court.

9. To my mind, on that approach, the application remains one under s. 21A notwithstanding that whilst it continues the court is exercising powers conferred by other sections and a, if not the, central issue is what available regime of care will best promote P's best interests. This is because the proceedings were issued under s. 21A and, in the exercise of the jurisdiction conferred by that section, the court has to consider amongst other things the best interests of P. I add that if, in those proceedings, the court reaches a conclusion that the statutory scheme should or would no longer apply to the regime in place to promote the best interests of P, it has more than adequate powers of its own motion to make longer term declarations and orders under ss.15 and 16.

10. The discussion that gave rise to this expression of view arose, and is relevant, because, at the moment, there is a distinction between the funding available from the Legal Services Commission in respect of an application under s.21A, and other applications before the court, albeit that they can often raise the same central issues. I have recorded those views to indicate why I have proceeded on the basis that this application is, and remains, an application under s.21A and that the court is making interim orders in those proceedings."

Under the April 2013 regulations, once the Court "held the ring" in line with HA and the standard authorisation was no longer in place, means-free legal aid was removed by the Legal Aid Agency. This was quite likely to arise just as P's application was being closely examined by the Court, including consideration of independent experts, alternative care plans and relevant records.

In the solution to this problem, and as to be seen shortly in the judgment of Charles J, the MoJ has accepted the principle that non-means tested legal aid needs to remain in these cases to satisfy Art 5(4).This generally follows European caselaw on this issue as per Winterwerp v Netherlands [1979] 2 EHRR 387 and Megyeri v Germany [1992] 15 EHRR 584.

In future, therefore, the court will continue to manage and authorise cases under s21A itself, and the MoJ will not hold this to be an inappropriate device which it would challenge. In this way such legal aid should continue whilst the court is considering a s21A application. The court will thus exercise its powers under s21A(3)(a) to vary the standard authorisation and extend an extant authorisation pursuant to section 21A (2) (b) MCA 2005.  In addition the Court may need to consider making an order under s21A(6) MCA 2005 exonerating the supervisory body from liability for the extended period as the Court would have assumed the responsibility.

This has to be a very welcome development in that "free" legal aid is now restored, although it is unclear why the MoJ made the change to the Regulations in this way, which they protested loudly was not made in consideration of the HA case.

A sting may remain in the tail for legal aid practitioners even in these cases, as the MoJ has indicated that cases which drift too far into welfare considerations, especially under s15 and s16, may be subject to adverse costs assessments. It appears this was issue which the MoJ wanted to tackle in the new Regulations. However it is very unclear how a properly determined s21A application can frequently avoid extensive welfare considerations and so adequate legal aid funding will remain a live question; and the court may need to confirm the key issue of s21A in their orders, where possible, to properly assist in the ongoing provision of legal aid.

In addition, of course, such non-means tested legal aid does not touch the increasing number of those whose Article 5 rights are infringed in "supported  living" provisions (where DoLs does not apply); or where P is clearly detained in a hospital or nursing home but a DoL has not been put in place. Furthermore in such means tested cases, tightened means testing requirements introduced last April will put legal aid out of reach for many effectively denying them any remedy to detention.

Richard Charlton
Head, Mental Health, Creighton & Partners
Chair, Mental Health Lawyers Association