This article titled “Judge challenges government over legal representation for vulnerable people” was written by Owen Bowcott Legal affairs correspondent, for theguardian.com on Thursday 10th March 2016 18.23 UTC
A senior judge has challenged the government to provide legal representation for vulnerable people as a backlog of safeguarding cases that cannot be tried builds up in the court of protection.
The ruling by Mr Justice Charles will, in effect, halt thousands of sensitive applications a year involving those with dementia, Alzheimer’s or learning disabilities who require treatment involving some loss of liberty.
The judgment is the latest confrontation in the gruelling war between the legal profession and ministers over how much money should be spent on the justice system at a time of austerity.
In his judgment, Charles, who is a high court judge and vice-president of the court of protection, has adjourned four test cases until someone – the Legal Aid Agency, local authorities or central government – agrees to pay for the unidentified claimants to be represented.
The face-off is partially a consequence of a 2014 decision by the supreme court which concluded that a severely incapacitated man and two sisters with severe learning disabilities had been “deprived of their liberty” under mental health powers. In extending human rights protections, it said they were entitled to take part in any deprivation of liberty proceedings.
Charles said: “A consequence of this conclusion of the supreme court is that it has, in a time of austerity, imposed major and perhaps unforeseen difficulties and burdens on those responsible for providing, authorising and monitoring the placement and care of a wide range of vulnerable people.”
Thousands of cases every year would be affected, he said. Either extra resources would have to be provided or the court of protection would halt hearings because they would otherwise breach article five of the European convention of human rights, guaranteeing the right to liberty, and the common law.
Charles acknowledged he could not order the government to pay for legal representation and therefore issued an “invitation” for it to do so.
The judge said: “ … unless the Ministry of Justice and the Department of Health (or one of them) are joined parties, they will continue to seek to avoid any responsibility for the provision of resources … that enable the [court] to meet the minimum procedural requirements and this will cause further delays and difficulties.”
The Law Society, which represents solicitors throughout England and Wales, intervened in the case. Its president, Jonathan Smithers, said: “
When a vulnerable person doesn’t have friends or family to represent them during a decision to restrict their liberty, it is vital that person is able to participate in the decision-making process.
“If this is not possible then they must have a legal representative to protect their rights as well as their health and general welfare. Those who are least able to defend themselves should not be sacrificed on the altar of austerity.”
Sophy Miles, a barrister at Doughty Street chambers who formerly chaired the Law Society’s committee on mental health and disability, said: “These cases involve people who are being cared for in circumstances where they are under constant supervision and control. They cannot exercise autonomy and, because of that, they can’t give consent. They need a certain level of legal protection.”
In a separate dispute over the provision of representation for an inquest into the death of seven-year-old Zane Gbangbola, the MoJ said the Legal Aid Agency was not obliged to support his family.
Zane died at his Surrey home during floods in February 2014. High levels of hydrogen cyanide were allegedly detected near the house.
The Green party leader, Natalie Bennett, has written to David Cameron calling for the family to be given legal aid at the coroner’s court hearing in June. Local authorities and government agencies are all due to be represented by QCs and senior barristers.
“The Gbangbola family need all the support they can get and I urge the prime minister to make the necessary moves to ensure they are given legal aid,” Bennett urged.
An MoJ spokesperson said: “Our sympathies are with Zane Gbangbola’s family following his tragic death. Inquests are aimed at helping families find out the circumstances behind the death of their loved one. They are specifically designed so people without legal knowledge can easily participate and understand what is happening. The coroner can put questions on behalf of the family during proceedings.
“Legal aid remains available to help families prepare for an inquest and pay for representation, subject to means and merits tests.”
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