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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