ANNEX C: Detailed explanatory note for Part 1 of Schedule 1 Paragraph 5: Mental health and mental capacity
834.Sub-paragraph (1)(a) provides that civil legal services may be made available in relation to matters arising under the Mental Health Act 1983. These include civil procedures under which individuals may be detained in hospital for assessment or treatment for a mental disorder.
835.Sub-paragraph (1)(b) provides that legal aid may be made available for applications by a prisoner to a Mental Health Review Tribunal under paragraph 5(2) of the Schedule to the Repatriation of Prisoners Act 1984.
836.Sub-paragraph (1)(c) provides that civil legal services may be made available in relation to matters arising under the Mental Capacity Act 2005. Such services may relate to decisions of the Court of Protection made under that Act concerning the property, financial affairs and personal welfare of persons who lack capacity to take those decisions for themselves.
837.Sub-paragraph (2) specifies that paragraph 5(1) is subject to the exclusions in Part 2 and Part 3.  Advocacy available under Part 3 includes advocacy in proceedings in the First-tier Tribunal (Mental Health) and the Mental Health Review Tribunal for Wales and in appeals to the Upper Tribunal arising out of such proceedings (see paragraphs 9, 10 and 15 of Part 3). Advocacy may be made available for the purposes of proceedings in the Court of Protection to the extent that they concern certain vital interests of the individual concerned, for example, the right to life, liberty or physical safety (see paragraph 4 of Part 3 of Schedule 1).
838.Paragraph 5(3) excludes services provided in relation to the creation of lasting powers of attorney or the making of advance decisions under the Mental Capacity Act 2005, but sub-paragraph (4) states that this does not exclude services relating to the validity, meaning, effect or applicability of a lasting power of attorney that has been created, or an advance decision that has been made.