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
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
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.