Government plans to bring serious Court of Protection cases - such as the withdrawal of nutrition and hydration from a person in a permanent vegetative state - within the scope of legal aid are too restrictive, the Law Society has warned.


Responding to a government consultation on how the court would operate under the Mental Capacity Act 2005 from April, it predicted that the provision of Legal Help may be a disincentive for solicitors to handle such work as it would not cover the expert evidence on capacity issues that is needed early on in cases of this nature.



Under the proposals, the Legal Services Commission would provide Legal Help, Help at Court and Legal Representation for proceedings that are of overwhelming importance to the person concerned, and the court has ordered or is likely to order an oral hearing at which it will be necessary for that person to be legally represented.



The main cases affected will be serious medical treatment cases - including the termination of pregnancy, or sterilisation of a person for contraceptive purposes in respect of people who lack the capacity to make these decisions themselves. The move would also extend to so-called Bournewood cases, involving decisions that would have the effect of depriving a person who lacked capacity of their liberty.



The Society said it was concerned the proposals would exclude a number of vulnerable clients who have a justifiable case for public funding, and criticised the 'narrow' funding criteria that would be applied and particularly the definition of 'overwhelming importance'. It said the effect of the proposals would also be to restrict the availability of legal aid in mental capacity cases involving public authorities more than other actions against public authorities, which could be discriminatory under the Disability Discrimination Act.



While it welcomed the decision to cover Bournewood cases, the response continued: 'However, we strongly believe that these cases should not be subject to the means and merits test.'