Assessing the mental health needs of older people


Summary: Advocacy

A number of separate pieces of recent legislation emphasise a need for advocacy for people with mental disorders and those who lack capacity, with the aim of supporting decision making and the process of informed consent. They include:

Legislation on advocacy

There is currently no systematic framework to ensure that all older people have access to advocates to support decision making and the process of informed consent, whether they have capacity or not. The Mental Health Bill proposes the right to independent advocates for people with 'severe and enduring' mental health problems and anyone detained for more than 28 days (see The Mental Health Bill). Whilst this offers some protection to older people with mental ill health, it does not ensure support for all older people who are detained without consent and lack of capacity.

The section on the Mental Capacity Act 2005 outlines the role of Independent Mental Capacity Advocate (IMCA), who may be appointed to represent a person who lacks capacity but has no one to speak on their behalf when decisions need to be taken about serious medical treatment and long-term residential care.

Sections 2 and 3 of the Disabled Persons (Services, Consultation and Representation) Act 1986 allow the recognition of advocates by the local authority and for the local authority to have the ability to appoint an advocate where the person has no relative or friend able to take on that role. However, these sections are rarely implemented.

In addition, the Health and Social Care Act 2001 provides the Secretary of State with powers to order the provision of independent advocates. However, the role of such advocates is limited to helping people through the NHS complaints procedure. They will not, for example, support people when making healthcare decisions.

See also Section 3, Involving advocates.

Next: Care standards