Legal Aid restored for mental health patients

In April 2013, the Government’s Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) came into effect, aiming to cut legal aid and limit it to members of the public in very specific circumstances. But long before this legislation came into force, many had recognised that the European Convention of Human Rights (ECHR) would sit uneasily with these changes.

Article 5 of the ECHR states that everyone has the right to liberty and security. In cases where an individual is “deprived of his liberty by arrest or detention”, under Article 5 such an individual has a right to a fair and rigorous court process.  

It is this very article of the ECHR that LASPO seems to have affronted. London firm Creighton & Partners asked the Court of Protection to consider the legality of the Act’s changes. Specifically, questions were raised concerning measures introduced in April that looked to stop legal aid for those lacking mental capacity, during the time they were detained as the Court considered their case.

The effect of LASPO as it was intended would have left people lacking the mental capacity to either argue their own case as a litigant in person, or not to pursue it at all. The Court took the view that the cut to Legal Aid was in breach of Article 5 of the ECHR.

The Ministry of Justice (MoJ) seems to have recognised this decision. The removal of legal aid from people challenging their detention under the Mental Capacity Act was unlawful and was to be reversed with immediate effect.  

Creighton’s head of mental health Richard Charlton, who is also chair of the Mental Health Lawyers Association stated, ‘While I am delighted that the government has seen sense here, it is of concern that a case such as this was necessary to change policy.’

Mr Justice Charles, of the Court of Protection, responded that the Court’s function was not to order the MoJ to change laws. However, as a High Court judge he could reconvene the hearing in the Administrative Court, which could order such changes.

But there could still be a sting in the tail for legal aid practitioners. The MoJ has indicated that certain cases that seek to take advantage of this reversal could be subject to adverse costs assessments. Such a response makes clear that the status of legal aid in these circumstances is no doubt an unsettled matter.

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