Proposals for the Reform of Legal Aid in England and Wales (2010)
"This consultation seeks views on proposals for reform of legal aid in England and Wales. The proposals represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for those cases in which legal advice or representation is justified. This consultation is aimed at providers of publicly funded legal services and others with an interest in the justice system."
In relation to mental health law the proposals are to (1) retain legal aid for mental health and capacity detention cases, including appeals to the First-tier (Mental Health) Tribunal, and onward appeals to the Upper Tribunal, and appeal as to the Court of Protection on deprivation of liberty issues; (2) retain legal aid for judicial review challenges; (3) remove legal aid for tort or other general damages claims unless the claims are of a very serious nature (paras 4.92 to 4.94). The summary for the scope of mental health law is that 'We propose to retain the current provision of Legal Help and Controlled Legal Representation' (Annex F). All civil hourly rates and fixed fees are to be reduced by 10% (para 7.6 to 7.7) and there are also proposals for reducing experts' fees (see chapter 8). There are less generous rules on financial eligibility and contributions, but these proposals will not affect those cases, such as Tribunal work, which are not subject to means testing (para 5.4).
Ministry of Justice, 'Reform of Legal Aid in England and Wales: the Government Response' (Cm 8072, June 2011). Other related documents are also available. Some points particularly relevant to mental health law are: (1) There will be a 10% cut in all civil fees, including mental health law (para 34). (2) Advice and representation under the MHA 1983 or MCA 2005 will remain in scope (para 86). However claims involving tort or other general damages claims will be excluded except where these meet the criteria for 'claims against public authorities' or 'claims arising out of allegations of the abuse of a child or vulnerable adult, or allegations of sexual assault' (para 87). The 'claims against public authorities' criteria allow legal advice and representation for claims (typically claims for damages) against public authorities concerning 'abuse of position or power' or 'significant breach of human rights' (no longer for 'serious wrong-doing') (para 10ff). (3) Legal aid will remain available for judicial review and habeas corpus (subject to immaterial exceptions) (para 88ff).