Without access to justice, it's open season...

This is feels like a slightly lazy post, in that I'm not contributing any new findings or views, but I wanted to draw readers' attention to the important response of the Official Solicitor (OS) to the recent legal aid consultation if they haven't already read it.  The response can be found on the website, here (doc); if you've got the time I really recommend reading it (it is nearly 50 pages long though), otherwise I'll do my best to give some background and a summary here.

Alastair Pitblado (for he is the OS) does not strike me as a man prone to needless exaggeration or overblown rhetoric.  In what I know of his work, he strikes me as cautious, pragmatic and with a (some might say overly) healthy respect for the public purse, as comments in this interview in The Times suggest:

[He is] standing in the vulnerable person's shoes, he says, seeking what is best for [the client]. But they must also be proportionate: "It is tempting to want the best for your client when the best is not available." He cites a case in which the local authority could no longer keep the client in an expensive care home. "It's not my job to ensure that the client stays in that very expensive care home if a less expensive one will still protect them. We must avoid prolonging proceedings or second-guessing a council's allocation of funds." (The Times, 3 March 2011)*

So when he says that 'there is a very serious risk that the proposals would act to limit access to justice for some of the most vulnerable in society', I am inclined to believe him.  With almost unbearable attention to legal detail, in a response entirely devoid of adjectives or hyperbole, the OS takes us through each and every way the legal aid proposals pull up the drawbridge to justice for the most vulnerable.

What is the Official Solicitor?


Put in legalese, the OS is a 'litigation friend of last resort' for people who lack 'litigation capacity'.  In plain English, when a person lacks the mental capacity to give a solicitor instructions, someone is sought to instruct them on their behalf - a 'litigation friend'.  A 'litigation friend' is often the person's next of kin, but sometimes there will be no such appropriate person, or there is a conflict of interests, or they are unable or unwilling to do so.  In such cases, the OS acts as their litigation friend as a 'last resort'.  The OS is appointed by the Lord Chancellor, and is assisted by a team of government lawyers - 'case managers'.

The OS is usually contacted if a solicitor has concerns that the person they are representing may lack the mental capacity to instruct them.  Capacity to litigate used to use a test set out in the case Masterman-Lister, but now uses the test of capacity set out in s3 Mental Capacity Act 2005.  At times, as you can imagine, it can be quite contentious whether a person lacks the capacity to instruct a solicitor, but I'm not going to discuss this aspect of litigation capacity today.  When the OS acts on behalf of people, he rarely deals with them directly - usually they will mostly deal with their own solicitor, the difference being that the solicitor has to take instruction from the OS and not the client themselves.  I should say, that many of the considerations I discuss below will be true also for children - who are barred by law from conducting litigation without a litigation friend.  (To Kinnock's 'I warn you not to fall ill, I warn you not to get old', we might add 'I warn you not to be young' these days).

What does all this have to do with the legal aid consultation?


When a person lacks litigation capacity, it is unlawful for them to conduct litigation - either to bring a case, or to defend a case.  The legal solution to this is to appoint a litigation friend (be it the OS, or another person or organisation).  The problem is that the role of a litigation friend is to instruct a solicitor, not to represent the person themselves.  This means that money has to come from somewhere to pay the solicitor.  To put it simply, whereas if somebody with litigation capacity could, at worst, be forced to run their own case without legal representation (a 'litigant in person'), this option isn't available when a person lacks litigation capacity.  In effect, if there is no money for the solicitor, either the case can't be brought on behalf of the person who lacks mental capacity, or a case cannot proceed against them if brought by another party.

What kinds of cases are we talking about?  In the annual reports of the OS they usually list the kinds of cases they get involved in.  These include: personal injury claims (including catastrophic injury), possession orders, probate issues, judicial review of decisions of public authorities (including care and treatment decisions), displacement of the nearest relative under the Mental Health Act, divorce proceedings, child protection proceedings, welfare decisions under the Mental Capacity Act, etc etc.  One particular case stands out to me, contained in the annual report for 2010, where the OS intervened after a hospital trust had decided to withdraw artificial nutrition for a man who had been unconscious following a road traffic accident for four years.  Under the Mental Capacity Act this decision to withdraw life-sustaining treatment should have been brought before the Court of Protection, and by the time the OS had intervened nutrition had been withdrawn for three weeks.  The Court ordered a resumption of feeding and reduction in sedation, and it was reported that the man is making a recovery which may in time allow him to drink and feed orally, and speak.

The overarching problem, is that the legal aid proposals rest on a set of assumptions that people will have alternative means to access justice than through legal aid, which are simply unfounded where people lack litigation capacity.  They are quite probably unfounded for lots of people who wouldn't need a litigation friend, but I'm going to focus on the capacity issues here.

Alternative dispute resolution and litigating in person are not viable options for people without litigation capacity

The consultation proposes using 'Alternative Dispute Resolution' (ADR) instead of courts wherever possible.  But as the OS's consultation response points out 'those who lack capacity are in need of special protection and are unlikely to be able to resolve their disputes in a fair way with a just outcome through ADR'.  He goes on to say:

A person who lacks capacity to conduct proceedings will be vulnerable both to their illness or disability going unrecognised or insufficiently recognised in this context (in particular by the person facilitating the alternative dispute resolution, although it may be known to the other party), and to misinterpretation of their actions.  

Furthermore, use of ADR where a person has limited capacity may be a false economy, as decisions reached through ADR may later be found to be unsound, and additional public funding may be required to reach a new decision.

Litigants in person


The legal aid consultation also proposes to remove assistance in areas where it thinks either people can seek advice for themselves from advocacy services, or will be able to represent themselves as 'litigants in person' (for instance, at tribunals).  The problem, as the OS succintly puts it, is that 'there appears to have been no consideration of the ability of those persons to represent their own case... If the person lacks litigation capacity (in other words the capacity to instruct a solicitor to act on their behalf), how will they have the capacity to conduct the litigation in person?'  Furthermore, how will their lack of litigation capacity be picked up, if they can't afford to approach a solicitor in the first place?


People whose property exceeds the means-test may be unable to release their assets to fund representation

The same means-testing rules for legal aid apply to people who lack capacity to litigate.  However, Catch 22 situations can occur if a person has the financial means, but also lacks financial capacity (the mental capacity to make major financial decisions).  If they lack financial capacity, they may be unable to authorise payments to the solicitor, or to release the capital required through, e.g., sale of property.  These situations have been referred to in past annual reports by the OS, and can be fairly intractable.  They are likely to occur with increasing frequency if the income or capital limits are reduced, or more areas are subject to means-testing.


No funding for 'Simple money claims' ignores importance of compensation for catastrophic injury

The legal aid consultation proposes that public funding will not be provided where the issue at stake is a 'simple money claim'.  The OS points out that for many of his clients these 'simple money claims' follow a catastrophic injury, and supply the financial means to pay for the nursing, care and treatment they may need for the rest of their life.  Denying them public funding for personal injury or clinical negligence claims may mean they are unable to make a compensation claim at all, which in turn may mean that the costs of their care would have to be born by the state.  The OS is quick to link this issue into the declining provision of state funded care: 'State provision is a safety net, but does not provide the standard of care which a court’s award of damages will provide, and is itself being cut back.'


In relation to clinical negligence, the OS makes this further comment:

These are generally cases where the victim has suffered because of failures by the State in its duty of care to citizens.  The State should provide the means whereby the individuals concerned, in particular those who are unable to present their own case, should be able to obtain redress through compensation, to put them back in the position, as near as possible, that they would have been in absent that failure. 

The Law Society has expressed concerns that withdrawing legal aid for compensation claims 'will leave pharmaceutical companies beyond the reach of the law.'  To this, we might add, any professional who neglects people with impaired mental capacity.

Divorce cases may reach stalemate


The OS states that 75% of the divorce cases he is involved in are legally aided.  He points out that in these cases family members are especially reluctant to act as litigation friends, perhaps for obvious reasons.  The proposals state that parties should seek alternative funding or use their property to fund legal representation for divorce cases, but 'this option is not available to many of those for whom the OS acts as litigation friend' due to a lack of financial capacity.  Without legal aid or alternative means, it may not be possible to secure legal services and thus:

If a litigation friend cannot be appointed (because there is no security for the costs of legal representation), then the litigation cannot proceed as a protected party, by definition, cannot act as a litigant in person. It follows that the parties are unable to obtain a decree of divorce or resolve the financial issues arising of the marriage breakdown. 

Both parties, then, will remain married unless funds can somehow be found from elsewhere to secure legal representation.

Increased exposure to financial abuse

By excluding claims for the recovery of property from the scope of legal aid, people may be left at significant - and irremediable - risk of financial abuse.  The response states:

The cases proposed for exclusion will leave the vulnerable without an effective remedy to recover assets rightfully belonging to them... The Official Solicitor acts as litigation friend for vulnerable property owners whose property has been transferred to others in circumstances where that person does not have the requisite capacity to understand the nature of the transaction. In such cases the vulnerable person (usually learning disabled) has been induced to transfer their property either in whole or in part to another person (sometimes a family member, sometimes just someone who has taken advantage of their vulnerability). Legal aid has funded the action for the transfer to be set aside.

And again, the OS reminds us, the state might end up picking up the costs in indirect ways:

Such transfers may be for the direct benefit of the person who has taken advantage of the vulnerable person, but may also arise as a result of relatives seeking to ensure they have the benefit of the property as opposed to its being used to fund the vulnerable person’s future care costs. As a result those care costs have to be borne by the State. Funding authorities such as local authorities frequently approach the Official Solicitor to act as litigation friend in such cases and recover property fraudulently transferred.

The response stresses that there may be no other ways for a person to recover their assets once transferred to another party, 'almost by definition the vulnerable person has no other assets and is therefore totally reliant on public funding to recover their property.'  It goes without saying that this will leave people without litigation capacity, or capacity to conduct proceedings in person, extremely vulnerable to financial abuse.  There may be little that could be done to rectify a situation once property has been transferred.

What about Court of Protection and deprivation of liberty cases?

The legal aid consultation is pretty vague about what will happen to public funding for 'best interests' hearings in the Court of Protection. The OS's view is that 'it is essential that legal aid should remain available for ‘P’ and other parties in the Court of Protection in proceedings covered by the authorisation. In those proceedings ‘P’s capacity and best interests are at issue.'

Currently legal aid is provided for anyone who is subject to a deprivation of liberty authorisation under Schedule A1 of the Mental Capacity Act (the 'safeguards' or the 'DoLS') and who wishes to appeal that authorisation under s21A.  This legal aid is non-means tested, as it is for their 'nearest person's representative', should they want to make an appeal.  The OS finds that it is not clear that this legal aid will remain non means-tested, but in any case, he points out, people who are deprived of their liberty in other settings are already only entitled to means-tested legal aid.  This means, for instance, if a person is de facto deprived of their liberty without authorisation, or in a setting where the safeguards do not apply (e.g. supported living), it may be very difficult to bring their case before the court.  This is particularly so if they lack financial capacity.  Cost may also be a deterrent to family members taking action on their behalf.  This places supervisory bodies and managing authorities who fail to seek authorisation when they should under very little pressure to comply with Schedule A1.

Withdrawal of assistance for those in debt

The OS goes on to discuss cases where a person has become indebted as a result of their lack of capacity.    He cites examples of where people who lacked the capacity to manage their financial affairs were judged, incorrectly, to have fallen into debt because they could not, for instance, respond to correspondence.  In one example a person was declared bankrupt and their assets were seized on the (incorrect) basis that they owed HMRC considerable back taxes; only through the involvement of the OS was the situation resolved.  The withdrawal of legal aid for anyone falling into debt is likely to be keenly felt in these times, but for people without litigation capacity it is unlikely they will have the ability to resolve their situation by any other means.  Indeed, if they lack financial capacity as well, they may be legally unable to use their assets to pay back any debts incurred.  It seems to me quite possible too, that people may be especially at risk from predatory lenders; the fact they lacked the mental capacity to agree to a loan would only have traction if the case could come before a court, the very possibility that is being withdrawn here.

It's interesting to note that much of the rhetoric underpinning this aspect of the proposed legal aid cutbacks rests on a belief that public funds should not be used to rectify situations which someone has brought upon themselves.  Aside from a refusal to acknowledge that social conditions that might contribute towards debt, there appears to be a total failure to recognise that people may end up in debt as a direct result of mental health problems or mental disorders.  The OS is quick to remind the government that this may, in any case, be a false economy: 'the loss of the vulnerable person’s assets as a result of an injustice that could have been rectified had public funding been available will add to further calls for financial assistance from the State on the part of the vulnerable person.'

Access to justice?

There is a great deal more detail in the response than I can do justice do here.  The overwhelming impression one has when reading it, is that the legal aid proposals were drafted with absolutely no consideration for the complex legal and social issues facing those without litigation capacity.  It is no small thing to say that they might find themselves, in a wide range of circumstances, with literally no effective remedy for any injustices or dangers they face.  And without access to justice, it will be open season for those who would take advantage of them.

Article 6 of the European Convention on Human Rights states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing

It is abundantly clear that if these proposals go ahead without further recognition of the predicament of those who lack litigation capacity, their Article 6 rights will be seriously infringed.  I like to think it is possible that the government's failure to address these issues in the legal aid proposal was simply an oversight; an embarrassing  and telling one, no doubt, but one which might be rectified before the government makes it's final decision.  Surely, it would take a very cynical government indeed to trample over the rights of the most vulnerable, whilst removing the very means to defend them?


Links: More reading on legal aid

• iLegal is collating all the responses to the legal aid consultation here
• Justice for All and Sound off Justice are campaigning against the legal aid cuts
• The Legal Action Group seek to 'promote equal access to justice for all members of society who are socially, economically or otherwise disadvantaged.' They also have a blog, here.
• Or follow them on Twitter: @JusticeAll, @ilegalbytes, @LegalActionGrp, and @soundoffjustice

(If I've left anyone off, apologies - please send me a message/email/comment and I'll add to the links)

*I'm not linking to paywalled content - I read the interview in a hard copy.