04th November 2013

Tightening of Legal Aid Funding for patients detained under the Mental Capacity Act highlights the need for expert representation

Written by Conor Maguire.

The Mental Health Lawyers Association’s recent article, highlights potential difficulties there may be for those detained under the Mental Capacity Act 2005 in accessing public funding to challenge their detention.

Detention of an individual can occur in several ways. For example, people are detained following a criminal case, under the Mental Health Act 1983 or under the Mental Capacity Act 2005. It is of course open to the detained person to challenge the lawfulness of that detention through the Courts or Tribunal services, whichever is relevant. In the case of a challenge to detention under the Mental Health Act, a person is automatically eligible for public funding without the need for a financial means test.

Under the Mental Capacity Act 2005, Parliament devised a scheme whereby hospitals and care homes can authorise the detention of an individual in that place, without the need for Court authorisation, provided that detention meets the relevant criterion — namely that:

  • The person lacks the mental capacity to make a decision to consent to the detention;
  • Detention is in their best interests; and
  • Detention is the least restrictive method by which the individual’s best interests can be served.

The scheme is commonly known as the Deprivation of Liberty Safeguards scheme (“DOLs”). Under the DOLs, a challenge to an authorisation for detention can be brought by the patient themselves or their representative (under section 21A of the Mental Capacity Act) and they will be eligible for public funding without a financial means test. That public funding will subsist for as long as the proceedings challenging the detention continue or as long as the authorisation for detention remains in place — whichever is the shorter.

In a Judgement in February 2012 (Re HA [2012] EWHC 1068 (CoP)), Mr Justice Charles considered the question of what the correct approach to authorising a detention should be of a patient subject to the DOLs scheme while the proceedings progress through the Court review process. Charles J took the view that once the court is seized of the matter,

“It 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…to my mind on that approach the application remains one under section 21A notwithstanding that whilst it continues the court is exercising powers conferred by other sections…”

Charles J recognised that there is a distinction between public funding available from the Legal Aid Agency in proceedings brought under s21A where a person’s financial means are not taken into account and other cases where financial means are taken into account. He emphasised his view that the court taking over the role of authorising the detention of the patient whilst the challenge progressed, did not change the nature of the proceedings and therefore non-means tested public funding should continue.

In brief, the MHLA’s concern is that that since changes to the public funding regulations in 2013, it is open to the Legal Aid Agency to remove non-means tested public funding where the court takes the approach of Charles J and authorises detention itself, rather than leaving any detention to be authorised under the DOLs scheme as the case progresses.

There is no doubting that this is a significant risk. It also carries with it potential human rights implications particularly if, by losing non-means tested public funding, a person who is of modest financial means, but by no means well off, does not qualify for public funding when financial means are taken into account. In these circumstances there is a significant chance that the detained person will not be able to afford representation and may not therefore be able to challenge their detention with a consequent denial of their rights under Art. 5(4) ECHR (the right to a prompt review of the lawfulness of detention by a Court) and or Art. 6 ECHR (the right to a fair hearing).

In addition the failure to provide non-means tested public funding to challenge a detention could be breach of Art. 14 ECHR read in conjunction with Art. 5. Art. 14 is concerned with discrimination and is wide ranging. The argument therefore may be that people detained under the provisions of the Mental Health Acts have access to non-means tested public funding before a Tribunal reviewing their detention whereas those detained under the Mental Capacity Act may not if the Court has made an interim order in respect of their detention. The argument continues that such a discrepancy is discriminatory in circumstances where the only difference between the two cases is that the detention is authorised under different legislative provisions.

Whilst all of this is interesting from an academic perspective, the lives of real people are affected by these scenarios and it is incumbent on legal advisors to be aware of the pitfalls and take all necessary steps to avoid a detained person losing their non-means tested public funding, and potentially their legal representation, when bringing proceedings under section 21A of the Mental Capacity Act.

In my experience, as long as the courts are made aware of the implications of taking the Charles J approach, they will be reluctant to do so and thereby not undermine eligibility for non-means tested public funding. It is possible therefore to avoid the fallout from such course of action. However it emphasises the significant need to obtain representation from legal advisors who are well versed in this area of law and who can make the appropriate representations to the Court. There is scope for concluding that the picture is not as bleak as might be thought on reading the MHLA article provided you have expert representation.

There is no doubt however that grants of public funding are under closer scrutiny than ever. If any further emphasis of this was needed, it has been provided of late in the Judgement of Mr Justice Holman in R (Moosa) v Legal Services Commission (now the Legal Aid Agency) [2013] EWHC 2804 (Admin), in which the court supported the Legal Aid Agency position that legal aid should not be available to a person who does qualify for it on a financial means test in cases where there are alternative individuals who could be expected to fund a case but who do not qualify for means tested public funding. That Judgement may be appealed but in the meantime may further restrict the availability of public funding, certainly on a means tested basis. 

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