Kathleen Lynch (Cork North Central, Labour) | Oireachtas source

I propose to discuss amendments Nos. 29, 30 and 112 together.

Amendments Nos. 29 and 30 propose to amend the Civil Legal Aid Act 1995 with key new provisions on legal aid for relevant persons. The Bill as published eased the criteria for legal aid by disapplying the merits test that currently applies in the Civil Legal Aid Act 1995. This provision ensures that the Legal Aid Board will not refuse legal aid just because it believes a case has no chance of success.

Amendment 30 adds crucial new provisions. It proposes to insert a new subsection 3A into section 28 of the Civil Legal Aid Act 1995. This will have the effect of ensuring that a relevant person who faces a court hearing to assess his or her capacity under Part 5 of the Bill will automatically qualify for legal representation regardless of his or her financial means. This provision will ensure that a relevant person will have the right to legal representation from the Legal Aid Board where an application is made to the court concerning the person’s capacity.

The Legal Aid Board will assign a legal representative from a panel of specially qualified solicitors. This is a crucial new provision that will significantly enhance the rights of a person with capacity difficulties in terms of access to legal representation when his or her capacity is at issue. Amendment 29 is consequential on this proposal.

The key objective is to ensure that a vulnerable person has quick and automatic access to legal representation to defend their interests when his or her capacity is in question. This is what will be achieved by the provisions proposed. However, some of the relevant persons who will benefit from the provisions will have considerable assets and means. It is appropriate that they should pay for the cost of the service that is being provided to them if they have the necessary means. Accordingly, it is proposed to insert a new subsection 7A into section 33 and a paragraph (fc) into section 37(2) of the 1995 Act to provide for the possibility of recoupment.

These provisions will enable the Legal Aid Board to recoup its costs if the relevant person is over the income threshold. However, even where the relevant person may subsequently have to pay for the costs of legal representation, that person will still benefit from access to the services of specially trained solicitors and from the fee limits imposed by the Legal Aid Board. As a result, the person will have access to a specialist legal service for potentially lower costs than would apply if the person were to select legal representation independently. Obviously, a person in this situation will continue to be able to use his or her own solicitor if he or she chooses. There will be no obligation to use the services of the Legal Aid Board.The final amendment proposes to insert a new paragraph (e) in the 1995 Act to transfer responsibility for legal representation of persons appearing at mental health tribunals from the Mental Health Commission to the Legal Aid Board. Amendment No. 112 also proposes to insert a new section into the Mental Health Act 2001 to achieve this objective. If these amendments are approved, the Legal Aid Board will assume responsibility for legal representation of those appearing at mental health tribunals. As under the current arrangement, the Legal Aid Board will assign legal representation from a panel of specially qualified solicitors. It is considered appropriate that the Legal Aid Board should take on this role because of its expertise in managing panels to provide legal representation for a range of legal aid schemes. The same protections and rights will apply for persons appearing at mental health tribunals as under the current system operated by the Mental Health Commission.

While we are transferring the decision support services to the Mental Health Commission we are transferring the legal representation element to the Legal Aid Board which has been looked for as long as I can remember. It is really necessary to move it into a more grounded and more appropriate space. In this case we are talking about people whose capacity is being challenged or who have to appear before a tribunal in respect of their mental health. It should not be the case that one is treated differently. As I said before, this is a significant move. I know Senator Norris can get annoyed with us about changes at this late stage but there are some changes that are very beneficial.