Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005 Contents


APPENDIX 8: MEMORANDUM FROM MINISTRY OF JUSTICE-12 FEBRUARY 2014


Memorandum from Ministry of Justice to House of Lords Committee on the Mental Capacity Act following oral evidence session with Lord McNally; Minister of State for Justice, Ministry of Justice and Norman Lamb MP; Minister of State for Care and Support, Department of Health on 3rd December 2013.

MoJ Response to the Committees request for clarification on changes to legal aid for people detained under the Mental Capacity Act following a press notice about changes to legal aid for people detained under the Mental Capacity Act—8 January 2014.

"The article in the Law Gazette on 2 December is factually incorrect.

As Lord McNally made clear in Committee, when making the regulations under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) the Ministry of Justice (MoJ) clarified that non means tested legally aided representation should be available to enable a person to challenge an authorisation to detain them made under Schedule A1 of the Mental Capacity Act 2005.

The purpose of this clarification was to put beyond doubt that means free funding was only to apply where an authorisation was in force and was the subject of a challenge under section 21A of the Mental Capacity Act 2005.

The MoJ gave evidence clarifying this policy in the Court of Protection case to which the article refers, and we are still awaiting a final judgment. Contrary to what is said in the article, the MoJ did not concede that the change to the regulations was unlawful, nor did we undertake to reverse it. We will of course consider carefully anything that the court has to say on the point in its judgment when that is received."


 
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