Protecting a person’s right to choose a representative

In 2019, we highlighted the issue of human rights after observing how some of the most basic human rights have been denied to people with support needs across the care sector. During Shared Lives week and at the annual conference, we re-emphasised that people being supported in Shared Lives deserve the same rights and freedoms as everyone else. A question raised at the conference was how do we put these rights into action? What does it mean to protect people’s lives in practice?

There are many ways to protect the rights of those supported by Shared Lives, and it does not always mean citing a piece of legislation that explicitly says ‘human rights’. A recent case, SB vs.South London, which was concluded on 30 January 2020 provides a fantastic example of how to protect someone’s freedom of expression. Going forward, the outcome of SB vs. South London, which is outlined below, may be useful to Shared Lives schemes and Shared Lives carers in cases where a supported person wants to make their own decision about who represents them.

In October 2018, ‘SB’ was detained in hospital under section 3 of the Mental Health Act 1983. After six months, a tribunal appointed a solicitor after the hospital stated that he ‘lacked capacity to appoint a representative’. SB attempted to appoint his own solicitor who had been visiting him in hospital to represent him, but this was dismissed by the tribunal after the new solicitor protested. SB was not discharged from hospital and his chosen solicitor entered an appeal on his behalf. In court, the judges determined that the tribunal had acted unlawfully for failing to presume SB had capacity, ignoring SB’s wishes and feelings, and favouring the wishes of representatives that SB had not chosen. SB was subsequently discharged and returned to live with his mother.

A person being supported by a Shared Lives arrangement has the right to choose their own representative if required. They can do this on the following basis;

1. Under s1(2) of the Mental Capacity Act 2005 there should be a presumption of capacity. This means that a person should be assumed to have capacity until it is established that they lack capacity.
2. If, like SB, they are unhappy with a solicitor who has been appointed to them, they can fill out a ‘Change of Solicitor’ form. This which would be strengthened if counter-signed by a close relative/solicitor as per s4(7) of the Mental Capacity Act 2005.
3. Finally, they can ask for the lower test for capacity to be applied, which would allow them to instruct a representative set out in VS v St. Andrews Healthcare [2018] UKUT 250 (ACC).

Rebecca Viney-Wood

Policy Officer