The Ministry of Justice has conceded that its decision to remove legal aid for people challenging their detention under the Mental Capacity Act was unlawful and should be reversed with immediate effect.
London firm Creighton & Partners, acting pro bono, asked the Court of Protection to consider the legality of regulations introduced in April that stopped legal aid for a detained person once a court began considering the case. The regulations had the effect of leaving people lacking mental capacity either to argue their own case as a litigant in person against, usually, a local authority and its legal team or not to argue it at all.
Previously, the UK had complied with the European Convention on Human Rights by making legal aid available for this group of people, putting them on an equal footing with those detained under the Mental Health Act and with people whose children had been removed by a local authority.
Creighton’s head of mental health Richard Charlton, who is also chair of the Mental Health Lawyers Association, said: ‘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.’
The judge in charge of the Court of Protection, Mr Justice Charles, told the ministry that the CoP was not empowered to order it to change the regulations. However, as a High Court judge he could reconvene the hearing at the Administrative Court, which could order the change.
The MoJ conceded that it should reverse the changes, Charlton said.