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10.43See chapter 5 for the general principles applicable to licensed work.
10.44The merits test for certificates to be granted for mental capacity work is:
1Civil Legal Aid (Merits Criteria) Regulations 2013 reg 52.•the standard criteria apply (see chapter 5); and
•the Court of Protection has ordered, or is likely to order, an oral hearing; and
•it is necessary for the individual to be provided with full representation in the proceedings. This means free representation is, however, available for the protected person and their Responsible Person’s Representative in an application under Mental Capacity Act 2005 s21A.
2Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 reg 5(g). It should be noted that it is the current practice of the Mental Health Unit of the Legal Aid Agency to also require a copy of a current urgent or standard authorisation for a deprivation of liberty or a copy of a court order made under Mental Capacity Act 2005 s21A authorising such a deprivation. 10.45Representation is generally only available where the proceedings concern
•right to life;
•liberty or physical safety;
•medical treatment;
•capacity to marry, enter a civil partnership or enter sexual relationships;
•right to family life.
10.46Other matters are out of the scope of representation, and an exceptional funding application will be required (see chapter 4 and para 10.5 above).
10.47As has been outlined elsewhere in this book (see chapter 18), a new civil contract will be entered into for mental health in 2018. At the time of writing the headline indication of the LAA intentions have been published and can be found at
www.gov.uk/government/publications/civil-2018-contracts-tender. Practitioners should note there are minor changes to the mental health tribunal supervisor requirements, including an increase in the minimum number of tribunals conducted from five to 10.
10.48However, potentially much wider implications arise in the area of Court of Protection practice. Here membership of the planned Law Society Mental Capacity Panel is proposed by the LAA as a requirement for carrying out work concerning mental capacity under the contract. Whether this will be a discrete category, or a sub-category of the mental health contract is yet to be seen. These proposals are also subject to ongoing discussions between the LAA and the representative bodies and we will update you via
www.legaiaidhandbook.com.