July 4th, 2014
In this blog I frequently refer to the cuts and changes to the Legal Aid system that are making it increasingly difficult for some of the most vulnerable people to resolve issues that would test many adults with full capacity. It would be impossible for the Minister for Courts and Legal Aid to follow all of the cases that go through the Court of Protection, but does he understand how the changes are affecting one group of people who need to be represented? If I had the opportunity, here is what I would like to ask him:
Are you aware of the recent Supreme Court judgment of Cheshire West and Chester v P, where Baroness Hale set out the ‘acid test’ for determining whether an incapacitated adult receiving care is ‘deprived of his or her liberty?’
As a result of that decision, there has been a tenfold increase in applications under the statutory scheme which authorises such deprivations. From just over 10,000 in 2012/13 the number of applications is set to rise to just under 100,000 in 2014/2015.
To be compliant with Article 5 of the European Convention on Human Rights there is a right to challenge the deprivation of liberty in the Court of Protection. Non means tested legal aid is available to the person deprived of his liberty and his representative, but the statutory scheme only applies to those in care homes and hospitals.
If, like many young adults with learning disabilities or brain injury, the individual receives care and support at home, they do not benefit from non means tested legal aid if they want to challenge their care and living arrangements that now may be depriving them of their liberty following the Cheshire West judgment.
Why is this? What is the material difference between these two groups of people so that just being present in a care home or hospital gives more people the chance to exercise their A5(4) right to a speedy review of their ‘detention’ with the benefit of legal advice and representation?
A vulnerable adult being cared for at home due to their disabilities and needs will be under the continuous control and supervision of their carers and, since they are ‘not free to leave’, they are just as likely to be deprived of their liberty.
Because there is no statutory equivalent for these individuals to challenge this, their circumstances must be considered by the Court of Protection. If the deprivation of liberty is found to be proportionate and in their best interests, it will be authorised by Order and reviewed regularly.
In my view the individual concerned should, if he or she wishes, be involved in the court proceedings, but they do not benefit from non means tested legal aid. If they don’t meet the stringent means assessment for legal aid, or have at least £10,000 available to foot the bill, they are unlikely to have their interests properly represented before the court (see my article in respect of the cuts to legal aid back in February 2014). Mr Justice Munby is likely to say something about whether the individual should be involved in the proceedings, in what circumstances and how, but it still puts those who are in their own homes, or supported living environments at a disadvantage over those who are in hospitals and care homes.
In addition, and because of the mounting numbers of applications (212 in 13/14 but predicted by Association of Directors of Adult Social Services to be 28,500 in 2014/15 and 31,500 the following year), the Court may only be in a position to rubber stamp applications unless someone pushes on their behalf to look more closely.
Why did the Government reject this in its response to the House of Lords Select Committee report on the Mental Capacity Act 2005? which was:
‘Recommendation 32: We note the pressure on legal aid, but we are concerned by the inconsistent provision of non-means tested legal aid for cases concerning a deprivation of liberty, including those where there is a dispute over whether a deprivation is taking place. We cannot see a justification for such inconsistency and we recommend that the gap in protection that it creates be remedied as a matter of urgency. ‘
Their response, in Paragraph 9.14, was that ‘we do not agree that proceedings which broadly relate to the deprivation of liberty should by themselves not be subject to the means test…’ It confirms that non means tested legal aid remains in place for those making section 21A MCA applications (those who are in care homes or hospitals) but do not believe that the ‘other kinds of proceedings described in the Committee’s report’ and I’m not really quite sure why.
There is no explanation in the response paper – but we would all welcome one.
A great deal of media coverage has recently highlighted the need for defendants in complicated cases, such as fraud, to be represented by advisers who have the time and specialist expertise. The regular response is that legal aid is there for those who need it most.
Here we are talking about really vulnerable adults who feel like prisoners in their own home at the hands of the state. Their situation needs to be addressed and legal representation can make a huge difference to the eventual outcome for these individuals.