2005 No. 448

LEGAL AID AND ADVICE

The Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2005

Made

Laid before the Scottish Parliament

Coming into force

The Scottish Ministers, in exercise of the powers conferred by section 36(1) and (2)(a) and (d) of the Legal Aid (Scotland) Act 19861 and of all other powers enabling them in that behalf, hereby make the following Regulations:

Citation and commencement1

These Regulations may be cited as the Civil Legal Aid (Scotland) Amendment (No. 2) Regulations 2005 and shall come into force on 5th October 2005.

Application2

These Regulations shall apply only in relation to any case where an application for civil legal aid is made on or after 5th October 2005.

Amendment of the Civil Legal Aid (Scotland) Regulations 2002

3

The Civil Legal Aid (Scotland) Regulations 20022 are amended in accordance with the following regulations.

4

In regulation 2(1) (Interpretation)–

a

in the definition of “legal representative” at the end insert “or on a patient’s behalf under the Mental Health (Care and Treatment) (Scotland) Act 20033”; and

b

after the definition of “parental rights” insert ““patient” has the same meaning as in section 329 of the Mental Health (Care and Treatment) (Scotland) Act 2003;”.

5

In regulation 5(1)(a)(iii) (Form of application) for “section 1(2) of the Mental Health (Scotland) Act 19844” substitute “section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003”.

6

In regulation 14 (Assessment of resources, etc. of person making application in representative, fiduciary, official or other capacity), in paragraphs (1) and (2) after “official capacity” insert “or is a named person by virtue of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment) (Scotland) Act 2003”.

CATHY JAMIESONA member of the Scottish ExecutiveSt Andrew’s House, Edinburgh

(This note is not part of the Regulations)

These Regulations amend the Civil Legal Aid (Scotland) Regulations 2002 as follows:–

a

the definition of “legal representative” is extended to include persons authorised to act on a patient’s behalf under the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”);

b

the reference to the Mental Health (Scotland) Act 1984 is removed in regulation 5 where it makes provision as to the procedure for signing applications for civil legal aid where the applicant is unable to sign due to mental disorder and is substituted with a reference to the 2003 Act; and

c

a reference to named persons, nominated and appointed in terms of the 2003 Act, is added to regulation 14 which provides for the assessment of financial resources of persons who make applications for civil legal aid in a representative, fiduciary or official capacity.

The Mental Health (Scotland) Act 1984 is replaced and repealed by the 2003 Act.