Joint Committee on the Draft Mental Incapacity Bill Written Evidence

73.Memorandum from the All Wales User Survivor Network (MIB 711)

  1.  The All Wales User and Survivor Network is Wales' largest independent user-led organisation for mental health service users. With approximately 600 members across Wales, the US Network aims to provide an effective voice for users and ex-users of the mental health system. Therefore the Network is ideally placed to respond to the draft Mental Incapacity Bill as it affects those who experience mental health difficulties.

  2.  In view of the piecemeal nature of previous legislation the new Act is timely in its attempt to provide a more systematic and coherent approach for those experiencing mental incapacity.

  3.  We particularly welcome the fact that the Bill does not attempt to label individuals as "incapable", but rather seeks to establish capacity for individual decisions on a case-by-case basis. We think it appropriate that the Bill assumes that all adults have the capacity to make their own decisions unless it is proven that they do not.

  4.  As regards the Lasting Power of Attorney we agree that a service user should be able to nominate a person or persons who will be able to make decisions on their behalf as regards financial, health and social care matters.

  5.  As regards Advance Directives we agree that these, when made by a service user when they have capacity, should be adhered to when they are deemed to have lost capacity. In order to be meaningful we believe that these, when made in the proper manner, should be legally binding and therefore enforceable.

  6.  We do have concerns, however, that in practice, Advance Directives may be ignored when enforced treatment is administered under the Mental Health Act.

  7.  We therefore request that greater clarification is provided in the Act and Explanatory notes about how Advance Directives are expected to work in conjunction with the Mental Health Act.

  8.  In particular, we would suggest that it is recommended that all professionals who are considering enforcing treatment under the terms of the Mental Health Act verify with the user and/or their carer at the outset whether they have made an Advance Directive.

August 2003

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