It was ruled by the Court of Appeal in July 2017 that non means tested Legal Aid should not have been granted to hear Paul’s case in the Court of Protection.
Because I was the applicant who was personally above the threshold to have qualified for Legal Aid we pursued the Court of Protection case via Section 21a of the Mental Capacity Act, which is not subject to a means test.
This was because Paul was officially declared Deprived of his Liberty (as decided by the Council, instigated by the Hospital’s Safeguarding team) so we could then use this route to Court. It wasn’t my decision, the Advocate’s, family’s the lawyers’ or anybody’s but the Council in conjunction with the Hospital, independently and before I had even instructed our public law solicitor.
Paul continuously at each assessment was classed as, and recorded to be Deprived of his Liberty and I recall it was taken seriously, with forms completed each time. However, my understanding based on when the Council would subsequently ask me and Jakki what action had been taken with regard to his DoLS, was that the hospital should have asked the Court to decide his Best Interests from the outset. Instead he was continued to be left and no action taken, only to have repeated DoLS assessments at intervals with the same findings each time.
This doesn’t seem logical to me, why hospitals and councils assess people as Deprived of Liberty or not and still continue to. Either way, we would have gone down another route for Paul’s case to be heard and received exactly the same outcome. The Court’s decision on best interests and medical treatment is unaffected and uncontested.
My Legal Aid has been honoured but it means other families going to Court for their relatives cases to be heard may now not qualify for Legal Aid. If the applicant earns above the threshold, or has so much equity in their home or savings above a certain amount, either they will have to fund representation themselves (around £50,000) or sometimes lawyers work for free, this may be unlikely though. It’s a huge amount for people to find.
From a positive perspective, not only is Paul’s a Landmark case that has changed the law for future MCS cases, but this latest Legal Aid ruling means PVS and MCS cases should not have to go to Court at all, if family and doctors agree with stopping medical treatment. Disagreements obviously will still need to be heard in Court. Who knows if this is really going to happen though, if responsibility be taken, when it’s easier to do nothing and leave things in the status quo.
It seems much needs to be altered in practise. Paul was left to needlessly suffer for over one and a half years. I can’t get that horrific time for him erased from my mind and never will. I am not at all confident (and many professionals say the same) organisations fully understand the Mental Capacity Act and enact on things as they should.
Families should not have to instigate Court applications but sometimes they have no choice or other option. In any case if you would like to avoid these type of scenarios and disagreements, it’s another good reason to have an Advance Decision to Refuse Medical Treatment.