The Mental Capacity Act and Lesbian, Gay, Bisexual and Transgender People

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2011 National LGBT Conference
8 August 2011
Carried as Amended

Conference welcomes the recent Personalisation in Social Care documentation released earlier this year, which describes the personalisation of care packages for those who require them. Personalisation considers the individual and puts them at the centre of the process of making important choices about their care and how they can be effectively supported.

The Social Care Institute for Excellence has produced some excellent documentation with regards to Personalisation and the Equality Act and its impact on Lesbian, Gay, Bisexual and Transgender (LGBT) individuals. It highlights the importance of the individual’s choices and that they should be adhered to.

Conference notes that legislation covering mental capacity is a devolved matter with separate acts covering England and Wales and Scotland, while Northern Ireland is preparing to enact its own legislation.

In England and Wales, the Mental Capacity Act (2005) allows for individuals to nominate someone as a Lasting Power of Attorney and identify people who should be consulted (including friends and carers), as well as providing for legal redress where this does not take place.

In Scotland, the Adults with Incapacity Act (2000) has similar provisions but includes a reference to the need to consult a person’s ‘nearest relative’ while stressing the need to give primacy to a person’s wishes and preferences and allows others to be consulted.

An example of the problems that may arise is the case of Sue W, who was a single lesbian with Multiple Sclerosis, she had a group of close friends who were aware of her wishes should her condition decline. She suffered an infection and was taken to hospital. Even though she was estranged from her parents and had not spoken to them in some years, they were contacted and took over Sue’s finances and care packages.

Conference, we celebrate the right to have a civil partnership, and be recognised as having a long term partner, but what about those of us who choose not to. We should be able to define who takes responsibility for us if we become unable to make decisions.

Therefore, Conference asks the National Lesbian, Gay, Bisexual and Transgender Committee to:

1.Consider campaigning on this issue, and engage other trade unions to do likewise;

2.Engage with LGBT Disabled Members with regards to this issue, and highlight the possibility of other individuals who consider themselves ‘single’ finding themselves in a similar predicament.

3. Engage with the National Executive Committee with regards to this issue, as It also impacts on non LGBT people who are ‘single’

4.Seek to publicise ways in which individuals can nominate people to be consulted in the event of lacking capacity or otherwise express advance decisions and preferences;

5.Raise these issues with the service groups in relation to improved guidance and training for staff dealing with issues of mental capacity and next of kin issues;

6.Work with appropriate organisations on changes in legislation, where necessary

Conference also notes that a proposal to approach the National Executive Council to investigate adding living wills and advance directives to the UNISONplus range of services was before National Retired Members’ Conference 2011. Conference therefore instructs the National LGB&T Committee to purse this item in liaison, as need be, with the National Retired Members’ Committee.