The Lord Chancellor has issued guidance changing the way public funding for representation for families at Article 2 inquests is decided.  Legal aid is now likely to be awarded following the unnatural death or suicide of a person detained in prison or a mental health unit or in police custody.

The exceptional case funding scheme

Historically it has been difficult for bereaved families to obtain public funding and this new guidance is intended make it easier to access legal aid.  The changes are the first step in a wide-ranging review of legal aid for inquests.  
The scheme enables bereaved families to obtain legal aid for legal representation at Article 2 inquests or where there is considered to be a wider public interest.

Key changes

  • Legal aid is likely to be awarded for representation of the bereaved at Article 2 inquests.
  • Caseworkers should pay particular attention to all the facts and circumstances of the case including:
    • the nature and seriousness of the allegation (e.g. cases of gross negligence, system failures, criminal conduct);
    • whether there has been a previous investigation into the death (e.g. by an NHS Trust); and
    • the particular circumstances of the family (e.g. emotional distress, whether the applicant has learning disabilities).
  • Only the applicant’s financial means will be tested
  • In wider public interest cases the interest must be ‘significant’ (e.g. identifying large scale systemic failings) and the benefits to be derived from the applicant being represented must be tangible and accrue to a large number of people.
  • The applicant must still satisfy the eligibility criteria, unless waived.

Comment

Police forces, prisons and mental health units are likely to see an increase in the number of inquests where the bereaved are represented.  Ensuring staff are supported, seeking legal representation at an early stage and preparing thoroughly for the inquest will become more important than ever.  Hopefully equality of representation could lead to the bereaved being more satisfied with the inquest process and may also mean that Article 2 inquests run more smoothly and in a timely way.

How Capsticks can help

Capsticks is a market leader in the healthcare and inquest field and is ranked in the top tier for inquests and clinical negligence work by the Chambers Guide to the legal profession and the Legal 500.  If you require inquest representation or would like to discuss any inquest related issues please contact: Georgia Ford, Philip Hatherall, or Ian Cooper.