Some good news, some interesting news, and an appeal for information!

In case you haven't already visited the University of Nottingham's Mental Health and Capacity Law blog, can I point you towards two great blog posts on two great ECtHR rulings.  The first is X v Finland, a case concerning the application of Article 8 ECHR to forced treatment.  The ruling found that because forced treatment was an interference with a person's Article 8 rights, 'the domestic law must provide some protection to the individual against arbitrary interference with his or her rights under Article 8' [217].  The court was particularly concerned that 'the applicant did not have any remedy available whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication and to have it discontinued' [220]. Over at the Mental Health and Capacity Law Blog it is suggested that this may have repercussions for compulsory treatment under the Mental Health Act 1983, because although we have - on paper - Wilkinson hearings, 'It is difficult to see that Wilkinson offers the sort of serious and practical legal challenge to involuntary treatment that the court in X would seem to want.'

Is Article 12 keeping you awake at night?

Because if you are at all interested in issues around mental capacity and human rights (as I tend to assume readers of this blog are), then Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) should be giving you pause for thought.  Article 12 is the right to equal recognition before the law of persons with disabilities.  It has been described as the core of the CRPD, and also as a 'paradigm shift', a 'war of ideas' and a 'clash of creeds' (see Quinn, more on this paper below)  Article 12 stands firmly within the tradition of the social model of disability – with a view of disability as a phenomenon that arises out of social barriers, prejudice and discrimination, in contrast to individualised and medicalised accounts.  On this model, what we call ‘mental incapacity’ arises through a combination of discriminatory attitudes and a lack of supports to assist people with disabilities in decision making. Both of these, being social phenomena, are remediable if we undertake work to challenge oppressive attitudes and ensure resources to support decisions are available.  In the final analysis, the strength of Article 12 may rise and fall with the strength of the social model of disability – which, despite its very important insights, is not without its limitations (see Shakespeare, 2006).  In the meantime, however, there is much to be learned from the debates around Article 12, and I hope to explore them more fully in this blog in this post and others yet to come.

Is the Mental Capacity Act 2005 too paternalistic?

The concept of mental capacity sits at the junction of two of the most powerful discourses in our society today: autonomy, and paternalism.  The Mental Capacity Act 2005 (MCA) is concerned with autonomy in two interlinked senses:

• Autonomy meant as the right to determine one's own course, free from external interference (closely linked to the concept of negative liberty and Liberalism in political philosophy);
• Autonomy meant as the capacity for self-governance of one's actions (often called 'personal autonomy' in Philosophy).

At base, the MCA serves a gatekeeping function between actions (or inaction) predicated upon discourses of autonomy or paternalism.  (Very) roughly put: if you have the capacity for autonomous (self-governing) decision making, you should enjoy the right to autonomous (free from interference) decision making.  If you don't have the capacity for autonomous decision making, then paternalistic interferences with your affairs are permitted.  In theory, under the MCA a person should not be denied the right to make decisions they are capable of making; but equally they should not suffer the consequences of decisions they are incapable of making.

Strategic litigation by the EHRC

The Equality and Human Rights Commission was established in 2007 to promote and enforce equality and human rights laws in the UK.  It replaced three well respected predecessor bodies: the Racial Equality Commission, the Equal Opportunities Commission and the Disability Rights Commission.  The EHRC has powers to conduct formal inquiries, to bring judicial review proceedings to prevent breaches of the Human Rights Act 1998, to undertake legal policy work including briefing ministers and parliament on human rights issues in draft legislation.  It also has powers to intervene in particular legal cases, where it feels important equality or human rights principles are at stake.

I wrote to the EHRC some time back asking whether it might consider sharing its written submission in the Court of Appeal hearing of P & Q v Surrey County Council (on appeal from the High Court ruling MIG & MEG).  The EHRC was under no legal obligation to share these submissions, as documents relating only to court proceedings are subject to an exemption under s32 Freedom of Information Act 2000.  However, the EHRC didn't only share it's submissions in P & Q with me, but also some very interesting written submissions in several other cases relating to mental health, mental capacity and human rights.  It's a common source of frustration for legal researchers that we have little access to court documents beyond the published judgment, so it's a wonderful opportunity to see some of the arguments that were put before (or will be put before) the courts, but which may not have been addressed or mentioned in the final judgment.  It's also a great opportunity to read some high quality legal reasoning produced on behalf of the EHRC.  I am very grateful to the EHRC for sharing them with me, and also pleased they're happy for them to be shared more widely on this blog.

EHRC written submissions in P & Q (MIG & MEG)

The EHRC intervened in the P and Q case at the Court of Appeal.  I've written previous posts about the judgment in the High Court, and the Court of Appeal, so I won't repeat any details of the case here.  As I understand it, permission to appeal in the Supreme Court is being sought (the outcome on permission should appear here in the next few weeks/months), and I hope the EHRC will also intervene at that point.

You can read a copy of the written submission here.  It was drafted by Paul Bowen at Doughty Street Chambers.  Bowen has been involved in lots of very high profile and important cases, including the Bournewood judgment itself and another important deprivation of liberty case JE v DE (2006).  In the Court of Appeal ruling, it was held by Lord Justice Wilson that absence of objections by the relevant person pointed away from their being deprived of their liberty [25].  The EHRC submission prepared by Bowen explicitly cautioned against this approach:

P's lack of objection to remaining may be a consequence of the measures placed upon her and her particular suggestibility or other vulnerability. This is one reason why it does not follow that, because P's objections are relevant in determining there is a DOL, P's lack of objection is also relevant in determining there is no DOL. P's lack of objection may be mere acquiescence in the face of the restrictions placed upon her, which is a reason for concluding those restrictions do give rise to a DOL rather than the opposite

I find this argument very attractive.  I and others have expressed concerns that the Court of Appeal ruling could leave people with very limited communication abilities without the protection of the safeguards.  Bowen's argument takes this one step further.  Even if people are physically able to communicate objections, the effect  of the restrictions placed upon them may be such that they acquiesce to them under pressure, and feel mentally or emotionally unable to express dissent.  Sociologist Erving Goffman called this effect 'institutionalisation', or - more dramatically - 'mortification of the self'.

John Wadham is the Group Legal Director at the EHRC, and in addition to the written submission prepared by Paul Bowen he drafted his own witness statement, which you can read here.  He expressed particular concern that the deprivation of liberty safeguards framework did not extend to children (MEG, now Q, was 17 at the time of the High Court hearing), and the potential for abuse where there is no external scrutiny of the treatment of vulnerable incapacitated children.  The Commission proposed an alternate procedure for children, whereby if the local authority has reason to believe deprivation of liberty may be taking place, they should conduct an assessment and appoint an advocate.  If either the local authority or the advocate do not find the restrictions proportionate, they should apply to the Court of Protection for a ruling on its lawfulness.  The Court of Appeal made no comment on this expression of concerns; perhaps it will be taken up by the Supreme Court.

Written submission in A Local Authority v A (A Child)& Anor [2010]

This was another extremely important case in the High Court, heard by Lord Justice Munby.  In A Local Authority v A Munby LJ was asked to determine whether an adult (C) and a child (A) with Smith-Magenis Syndrome, who were cared for by their parents in the family home, were deprived of their liberty.  A and C required constant supervision to keep them safe, and their parents locked them in their bedrooms at night.  According to expert testimony in the judgment this was the best way to ensure that A and C were kept safe at night whilst their carers got the sleep they needed to continue to support them at home.

The ruling is an extremely important one, I have not yet written about it here because my own views on it are still evolving and frequently change.  It raises such complex issues around the proper scope and purpose of Article 5, the relationship between families and the state, the very meaning of 'liberty' and the purpose of any safeguards to protect against arbitrary infringements.  Munby LJ sets out procedures to be followed by local authorities if they suspect that a person may be deprived of their liberty in the family home, creating a new aspect of the doctrine of positive obligations under Article 5.  It has to be said the judgment is rather less clear as to what might constitute deprivation of liberty in the family home.  Munby LJ emphasises that restrictions that promote a person's welfare, in the context of a loving family home, are far removed from the paradigm case of deprivation of liberty [150].  The difficulty that some of us have struggled with is how you resolve this with the provisions of Schedule A1 that say restrictions upon liberty, and deprivation of liberty, may only be permitted in a persons' best interests.  I suppose the problem that Lord Justice Munby and the courts more widely would have struggled with had they found otherwise is the extreme political toxicity of saying that parents who are doing their best to support family members with profound disabilities and challenging behaviours are depriving them of their liberty by keeping them safe.  One can only imagine how certain quarters of the press might react to dedicated carers having to seek authorisation from the court to "detain" those they care for, and perhaps with some reason.

In any case, here is the EHRC's submission to this case.  Again, it was drafted by Paul Bowen.  I notice that in finding that the state has positive obligations to protect people from violations of their Article 5 rights by private parties, Munby LJ has drawn heavily from Bowen's submission.

RP v United Kingdom

The EHRC also shared with me their written submission in a case that has yet to be heard before the European Court of Human Rights: RP v UK.  The case is one that has a certain amount of notoriety in the legal world, because it resulted in a Court of Appeal judge, Sir Nicholas Wall (now head of the family courts), heavily criticising the actions of John Hemming MP for his involvement in the case as RP's McKenzie friend.  You can read the somewhat infamous judgment; some of the exchanges reported are quite revealing  regarding the relationship between Hemming and the courts, particularly in the light of the events of the last few weeks.  The case concerned a young woman called RP, whose baby was subject to child protection proceedings.  As a result of a mental capacity assessment, which Hemming and RP herself dispute, RP was found to lack the capacity to conduct litigation in the proceedings and the Official Solicitor (OS) was appointed to conduct her case as a litigation friend of last resort.  The final outcome of the court proceedings was that RP's child was placed for adoption.  However, separate proceedings were brought by RP herself as a litigant in person, assisted by John Hemming as her McKenzie Friend, on the basis that her right to a fair trial under Article 6 was violated.  There is something extraordinary in the fact that an appeal could be brought by a litigant in person, when she was said to lack the mental capacity even to instruct a solicitor.  However, the court felt that there were important matters of principle at stake, so the appeal was allowed.

In thinking about this case it would be very easy to get distracted by a senior judge castigating an elected member of parliament.  It would also be very easy to get distracted by some of the more bizarre claims made by John Hemming reported in the judgment.  However, there are elements of the case that do give some cause for concern.  There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment).  Perhaps it's because I'm more familiar with Court of Protection cases than the family courts, but it did strike me as odd: I would have thought that the role of the OS was to champion RP's rights and her best interests, and it is up to the local authority to make the case on behalf of her child's best interests.  It seems that the EHRC were also concerned about this aspect of the case, as they have decided to intervene in a legal challenge to the judgment at the European Court of Human Rights.

The EHRC's written submission to the Strasbourg Court expresses concern on several grounds.  The submission is drafted by Helen Mountfield from Matrix Chambers; Mountfield was involved in the case YL v Birmingham City Council, concerning whether care homes were 'public authorities' bound by the Human Rights Act.  The EHRC argued that families with parents with  learning disabilities are not offered adequate support to care for their children themselves before the commencement of child protection proceedings, and that this might be in breach of their Article 8 rights.  They cite a range of evidence that parents with learning disabilities are poorly supported in the community.  I have some limited experience of working in a family assessment centre that assessed some parents with learning disabilities for child protection proceedings; I have to say I saw little to refute the EHRC's concerns about the amount of support available in the community to parents with learning disabilities - but they may have been isolated examples.  It would be interesting to see whether the European Court of Human Rights is prepared to extend the positive obligations of the state in this direction, given it would certainly place a significant financial burden on the public authorities who would be in a position to offer that support.

The second grounds for concern raised by the EHRC are regarding the role of the OS himself.  Undoubtedly the OS plays an extremely important role in upholding the rights of people who are unable to conduct litigation; there are many cases I can think of where the OS's intervention has upheld the most fundamental of rights on behalf of people who were unable to do so for themselves.  These include a case where a hospital had actually begun to withdraw treatment from a patient without seeking the Court of Protection's determination first; the OS's intervention meant that he then went on to make some recovery.  The Steven Neary case being fought this week in court is, in no small part, down to the work of the OS.  The OS also acts on behalf of children, and I wonder if this led to some blurring of the boundaries in this instance, where the OS appeared to take the child's best interests into account.  The EHRC express concerns that this was a breach of RP's own Article 6 rights:

...the case they put forward must be focused solely on the needs and wishes of the parent. That is not to say that the litigation friend cannot put forward a case which departs from the case which would be advanced by the learning disabled persons if they were representing themselves. It may be that the Official Solicitor does not consider that case to be in his or her best interests. But the focus should be on that person’s interests, alone. It is not the role of the Official Solicitor or other litigation friend to balance the interests of the parent and the child. If and to the extent the parent is represented by a litigation friend who seeks to present to the court an opinion as to what is in that person’s best interests “balanced” with what is in the child’s welfare, there is a breach of Article 6 and/or Article 8 and/or Article 14 ECHR. The litigation friend’s sole role is to promote the best interests of the person for whom they are appointed. Promoting the child’s interests is the role of the child’s legal representative, and deciding on whether the best interests of the child and the interests of the parent are opposed is the duty of the court.

A third area of concern raised by the EHRC is that there is no mechanism to displace the Official Solicitor:

[22] ...it should be recognised that litigation capacity can fluctuate or alter. Loss of litigation capacity is a very serious a matter. So where, as here, there is a mechanism whereby an official litigation friend can be appointed against the litigant’s will, there should also be a formal mechanism prescribing the circumstances in which, the evidence upon which, and time or means by which, the litigant deemed incapable can apply to have that decision set aside. The absence of such a mechanism constitutes a disproportionate infringement of the right of access to a court protected by Article 6.

[23] Whilst the Commission casts no doubt upon the good faith of the Official Solicitor or any of the experts instructed in the present case, it considers it to be institutionally unsatisfactory for there to be no such formal procedure. Once a person has been declared to lack litigation capacity, under the present system there is no means of his reacquiring it unless the Official Solicitor or the solicitor instructed by him on behalf of the litigant considers that the litigant may have recovered the capacity. There is no procedure for the litigant him or herself to raise the question, or to seek a further expert’s opinion, and no obvious mechanism requiring a review where, as here, the litigant produces an ostensibly plausible report from a Consultant Psychiatrist who expresses the view that she does have capacity. '

To the possibility of litigation capacity fluctuating or altering, we should probably add that opinions on whether a person has litigation capacity may - at the borderline - be a matter of dispute.  In a recent case V v R (2011) the Court of Protection was asked to decided whether V had litigation capacity.  Her mother doubted  that she did, whilst the defendants (perhaps unsurprisingly) felt that V had capacity to run her case against them.  Once it has been determined that a person lacks litigation capacity there seems to be no straightforward mechanism to displace the OS if they are acting on their behalf.  In cases as contentious as child protection proceedings, one can see how this can lead to discord between the parent and their legal team, and a feeling of powerlessness and perception of injustice. This sense of powerlessness could leave vulnerable people inclined to seek less appropriate sources of support.  According to the admissibility decision in Stanev v Bulgaria, the UK may be in the minority of Council of Europe states in having no legal mechanism whereby people deprived of legal capacity can apply directly to the courts for discontinuation of the measure (see paragraph 78).  I understand that the research this claim was based on was undertaken by the ECtHR itself; I have contacted them to ask for a copy of the research report.

Robert Seal v United Kingdom

I am ashamed to say I had not heard of this case before the EHRC shared their submission to the ECtHR with me.  The case concerns a provision of the Mental Health Act 1983, s139, which in requires detained patients to seek the permission of the High Court before bringing any civil case "in respect of any act purporting to be done in pursuance of" the Mental Health Act.  Robert Seal claimed he had been prevented from bringing a case against the police for unlawful detention as a result of the provision meaning that he was out of time.  In Seal v Chief Constable of the South Wales Police [2007] in the House of Lords, Lord Bingham commented:

Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seal's, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by sections 141 of the 1959 Act and 139 of the 1983 Act to those whose very important and often difficult task it is to care for the mentally ill.

Baroness Hale and Lord Woolf dissented from the decision.  The EHRC's submission was written by David Wolfe at Matrix Chambers; Wolfe has been involved in several important human rights cases including the right to treatment case concerning 'baby Charlotte'.  The Commission argued that s139(2) created a barrier to justice that was not a proportionate interference with the Article 6 rights of detained patients, commenting that it 'treats disabled persons as second class citizens without any justification'.  The ECtHR pronounced its judgment in December 2010, where it found that Seal's Article 6 rights had not been infringed.  The basis for the court's ruling appears to be primarily that Seal did not provide an explanation for why it took him from 1997 until 2003 and "the very eve" of the expiry of the limitation period, to commence proceedings against the  police.  In their view, Seal had been unable to bring his case not as a result of this measure, but the unexplained delay on his part in bringing a claim.  The court did not, therefore, give extensive consideration to whether the measure itself was discriminatory and a potential infringement of the Article 6 rights of detained patients more generally.

The future of strategic litigation by the EHRC

The government is currently consulting on reforms to the Commission.  You can read more about the government's proposals and the EHRC's response to them here.

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.