Cold front

The Court of Protection (CoP) has jurisdiction in relation to some of the most vulnerable individuals and over some of the most sensitive matters, but the reality is that it is inaccessible to the great majority of UK residents, especially when it comes to its welfare jurisdiction.

The reason is because very few private individuals could afford to ?litigate in the High Court and that is, essentially, what we are talking about when we refer to the CoP’s welfare jurisidiction. There is the possibility of public funds being available via the legal aid scheme, but these are far more limited than one would perhaps imagine – and that legal aid gap is what we ?will focus on here.

The recent case of W v M & Ors [2011] EWHC 2443 (Fam) (28 September 2011) has exposed the stark realities of the legal aid gap. This was the first case whereby the CoP was asked ?to determine whether it would be in ?the best interests of a person in a minimally conscious state to have artificial hydration and nutrition removed, which would result in her death. It is hard to imagine a decision of greater significance to the individual and Mr Justice Baker’s decision is also of considerable legal importance – and yet there was no legal aid available. There was no question of the family (for it was P’s family who sought the declaration from the court) being able to afford the cost of the litigation.

The only reason this extremely important case was considered by the CoP was because the family’s legal team provided for free what must have been an extremely expensive service. In his judgment, the Honorable Baker J made clear his concern as to this gap in legal aid provision: “It is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration... In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means-tested public funding may have to appear in person... Such a situation would seem to infringe the family’s rights under article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application.”

The reason that the family could not obtain legal aid was because public funding, in relation to welfare matters, is means tested (see table) and the great majority of the public would not pass the test.

Free speech

Non-means tested legal aid is available in the CoP, but only in relation to P’s deprivation of liberty (under section 21A of the DOLs). This is because when the Bournewood Gap was filled by the DOLs safeguards, the UK government was only too aware that non-means tested funding would have to be provided; given compliance with article 5.4 of the Convention would require legal representation to P in order for P to be in a position to challenge his or her deprivation to a ‘court or tribunal’. The provision of non-means tested legal aid meant that, quite properly, a patient deprived of his or her liberty under the Mental Capacity Act was on the same footing as a person deprived of their liberty under the Mental Health Act.

People other than P may also ?be entitled to non-means tested legal aid in order to bring about a challenge to a standard authorisation (the authority for deprivation of liberty via the DOLs process). That is an important safeguard given that P invariably lacks the capacity to be aware of his/her rights and the availability of an avenue of challenge. ?It is also particularly important given ?that there is no ‘automatic’ reference ?to the CoP to consider the legality ?of the deprivation, as there is for ?patients detained under the longer-?term provisions of the Mental Health ?Act 1983.
The availability of legal aid for relatives who wish to make a challenge was a particularly important factor in the Neary case. The problem there, however, was that there was poor provision of rights information to let Mr Neary senior know that he could secure a lawyer to assist in challenging the position relating to his son. One of the findings of Jackson J was that local authorities cannot rely on the lack of information provided to family members: “Local authorities have the advantage over individuals both in terms of experience and, even nowadays, depth of pocket. The fact that an individual does not bring a matter to court does not relieve the local authority of the obligation to act, it redoubles it.”

And yet is the provision of non-means tested legal aid for P and some family members in section 21A proceedings enough to ensure compliance with the Convention, given the significance of the issues inherent in the CoP’s welfare jurisdiction? Is there not an argument that welfare proceedings might engage article 6 of the Convention? And what happens (as is often the case) when section 21A proceedings lead one or other of the parties to issue other applications – which go beyond a consideration of the powers of the CoP in section 21A?
Does the legally aided party lose their funding (if they fail the means ?test) at the point when the section 21A issues have been determined? How can welfare issues and DOL issues, which may be inextricably linked, be separated in that way?

Added complications

A practical example would be as follows: P is deprived of his or her liberty in a care home with a diagnosis of early onset dementia. P wishes to challenge the deprivation and instructs a solicitor. Non-means tested legal aid is available. Following a section 21A application to the court, an early direction is made that P be represented by the Official Solicitor (OS), as his or her litigation friend.

Following the application made to the CoP to challenge the standard authorisation, the relevant supervisory body may then make an application to incorporate issues regarding residence, contact and finances into the proceedings. The legal aid then immediately becomes means tested. ?P may not be eligible for legal aid and would therefore become a private paying client. The stark reality may be that P, an elderly person with onset dementia, then cannot be represented in the proceedings. It is likely that P cannot afford the litigation and, unless there is sufficient liquid capital to pay privately, the OS will invariably refuse to act, as he needs to be funded in the same way that private solicitors are.

A further example of the difficulties that may arise is where P is suspected of being deprived of his liberty. For example, there may be a whole raft of restrictions imposed upon P, but the view of any best-interest assessor asked to determine whether there is a need for a standard authorisation may be that there is no deprivation of liberty. What if a family member wants them to be discharged and takes the view that there is a deprivation of liberty? There may be a legal argument that P is being deprived of his liberty, but legal aid is not available to bring the matter before the CoP unless on a means-tested basis, which obviously raises the aforementioned problems. If the client is eligible for legal aid then the solicitor would make a welfare application to the CoP, having demonstrated that there is merit to the application.

Of course, it may be that there are ?far fewer situations in the future whereby a best-interest assessor concludes that there is a deprivation – as a result of the recent Court of Appeal decision in The general consensus appears to be that the Court of Appeal has, by way of reference to a comparator test, reduced significantly the number of scenarios where there is a finding of a deprivation.
No deprivation means no standard authorisation; no standard authorisation means no section 21A application can be made; that in turn means no non-means tested legal aid so that if family wish to challenge the state of affairs they will need to do so on a welfare basis and either pay or manage to ‘limbo dance’ under the means test.

Without merit

A final concern is what appears to be a recent effort by the Legal Services Commision to create a merits test for section 21A challenges. We have recently applied for non-means tested funding to act in a challenge to a deprivation ?of liberty, only to be informed ?that we can have limited funding – to obtain advice from counsel ?about merits.

Why a merits test? There is a direct comparison here with those subject to restrictions under the Mental Health Act 1983. Guardianship order patients can be subject to restrictions, for example no time out of the specified residence without one-to-one supervision. Such patients, on a non-means tested basis, can apply to the Mental Health Review Tribunal to challenge the order without providing an explanation as to the merit of the application. The reason they do not have to address merits (and this is the same for patients detained under the Mental Health Act who apply to the tribunal) is because it is accepted that article 5.4 means that a psychatirc patient must be allowed to challenge their detention regardless of whether they may appear to have a ‘good case’ for doing so.
The creation of the new Court of Protection was rightly welcomed: here was a court with the specific remit of making decisions of critical importance in cases where the person at the centre of things could not make the crucial decision themselves. Given the gravity of the issues concerned, it was the right decision that the court was to be of the same standing as the High Court, but that (and the fact that many of the hearings take place in the Royal Courts of Justice in London) means that litigation in the court means money has to be spent: lots of it.

There is no prospect of any private individual, save for the extremely wealthy, being able to litigate in the court and, in the absence of legal aid for deserving cases, that means the court is inaccessible and will not be able to do what it was created to do. We can only hope that the Ministry of Justice will heed the concerns expressed by Mr Justice Baker, but, given their current approach to the provision of legal aid, that seems unlikely.

Rebecca Basely and Francesca Gardner are specialist legal clerks in the Court of Protection department ?of Switalskis Solicitors