LACKING CAPACITY

The legal aid model for the new Assisted Decision Making (Capacity) Act 2015 contains no schedule of fees for the appointment of counsel, and thus may significantly disadvantage already vulnerable persons.

April 26, 2023, saw the commencement of the Assisted Decision Making (Capacity) Act 2015. The Act establishes a new framework for supported and representative decision-making. The Circuit Court is empowered to make a declaration in respect of a person’s capacity to make specific decisions and, if absolutely necessary, to enable another to make decisions on that person’s behalf. Challenges to the suitability of a co-decision maker or claims of coercion, fraud, or undue influence in the creation of an enduring power of attorney will also come before the Circuit Court. Certain applications, for example those in respect of life-sustaining treatment, organ donation and the capacity of an existing ward, must be determined by the High Court.

Legal aid

Following approval by the Ministers for Justice and Public Expenditure of Terms and Conditions of the Assisted Decision Making Solicitors Panel, the Legal Aid Board established a panel of solicitors willing to provide services to legally aided persons in respect of applications pursuant to the Act. It is the general intention of the Board that a portion of the work will be undertaken directly by its law centres (about 20%), while the remainder will be undertaken by private solicitors registered on the Panel. Where counsel is briefed by a law centre, payment will be in accordance with rates contained in the Terms and Conditions of the Barristers Panel generally applicable in civil legal aid matters in the relevant jurisdiction.

However, the Terms and Conditions for the Assisted Decision Making Solicitors Panel make no provision for specific fees for counsel, with the Board adopting a ‘split-fee model’ in both Courts. The fee payable to the solicitor is “inclusive of any fee that might be paid to a barrister” and, where a barrister is retained, the solicitor and barrister are to come to an arrangement as to the barrister’s remuneration. Having regard to this provision and to their own professional judgment, it is a matter for the individual solicitor, in accordance with the client’s instruction, to decide whether counsel should be retained. Fees payable on appeal will be the same as those at first instance, and the services of senior counsel must be justified and specifically authorised by the Board. The Board says it anticipates that counsel will be briefed in a significant number of cases.

Disadvantage

The legal aid model, it appears to me, will ultimately disadvantage persons whose capacity is in question and undermine a principal purpose of the new legislation: to enhance such persons’ rights. For example, the fees payable by the Board for a fully contested capacity application are to cover all work undertaken by the solicitor (and barrister, if engaged). The fee also covers stamp duty and there are no additional travel expenses allowed. The fee structure is likely to discourage solicitors from engaging counsel, even though the work is complex and has significant implications for the fundamental rights of individuals, many of whom will be very vulnerable and have limited financial means. As a novel piece of legislation, it is likely to throw up difficult legal questions, where gaining the assistance of counsel will benefit the effective administration of justice. Furthermore, it seems likely that where the Health Service Executive is making applications in respect of persons whose capacity is in question, it will brief counsel, at least much of the time. What then, for equality of arms?

Deserving of representation

The Civil State Bar Committee has raised, through correspondence with the Board, its concerns regarding the absence of a schedule of fees for counsel in the legal aid scheme. Unfortunately, the Board has opposed any amendment to provide for this. For many years, the High Court (in particular, the President) has been entrusted with making decisions regarding capacity. These cases demand care and attention, and involve the application of a body of law, both domestic and international, that is not without its challenges. Where there are people with impaired decision-making ability, there is a risk of power imbalance and exploitation. Judges, solicitors and barristers play an important role in identifying and mitigating against abuse. The fact that many of these decisions will now be made in the Circuit Court as well as the High Court, makes them no less significant or the relevant persons less deserving of robust legal representation.