Assessing the mental health needs of older people

Mental health legislation

Summary: mental health legislation


Broadly, there are two groups of older people to whom mental health legislation applies: those who develop dementia or depression in later life, and those with 'enduring mental health problems'(people with a life-long mental illness such as schizophrenia or manic depression).

There is also a significant number of older people who have alcohol problems. Whilst 'substance misuse' does not in itself constitute mental disorder, an older person may be 'vulnerable' in ways that allow legal protection to be offered via routes other the Mental Health Act (see The legal background, above).

This sub- section focuses on mental health legislation and older people. It identifies the main provisions of the 1983 Mental Health Act and highlights a number of issues of key relevance to older people with mental health problems.

The Mental Health Act 1983

The 1983 Mental Health Act is the current principal Act governing the treatment of people with mental health problems in England and Wales. Its primary role is protective. Whilst the Act outlines a range of responsibilities and duties, its power to enforce the compulsory detention of a person with a mental disorder in a psychiatric hospital is one of its best known functions. There are plans to review the Act at a future date.

Compulsory admission under the Act may take place when the patient is:

There are three admission procedures under the Act which result in compulsory detention:

These procedures are called 'sections' as they refer to specific sections of the Act. A patient can only be admitted under section 3 if the necessary treatment cannot be provided without detention in hospital. Patients who are discharged from a Section 3 are automatically the subject of Section 117, which requires health and local authorities to arrange a package of 'aftercare'. The purpose of this is to enable a patient to return home and re-engage with activities of daily living. It aims to minimise the risk of re-admission. (See Mental Health Act: Key sections and grounds for detention for further details of these orders and specific grounds for admission.)

An additional section of the Act, Section 7 (2), deals with 'guardianship'. It provides a mechanism whereby a person over 16 can have 'their interests protected and be under some control' of the local authority or a guardian appointed by the local authority. Its purpose is to ensure that a patient receives support and community care where it cannot be provided without the use of compulsory powers. It has rarely been applied to older people its use widely varies between authorities. Last year, it was applied in 932 cases, ranging from 63 times in Lancashire to none at all in 12 London boroughs and 11 other councils.

Only a small number of professionals are involved in applying the Act. These are primarily approved social workers, GPs and doctors approved under Section 12 of the Act - either psychiatrists or others with specific training in mental health. Each professional performs an assessment of the patient's mental health and circumstances. If any one of them considers that there is insufficient evidence to warrant compulsory admission, the person cannot be detained under the Act.

The patient's 'next of kin' can also 'apply' for their relative to be detained under the Act and has the power to formally request an assessment under the Act in certain circumstances. For more about who qualifies as next of kin and what the duties and powers of a nearest relative are, see Further information.

Patients' rights

The Act provides the following safeguards for those subject to detention:

These safeguards are not available to informal patients.

Further information

For more about who qualifies as next of kin and what their duties and powers are, see MIND's leaflet Legal briefing: The rights and powers of the nearest relative.

For more about the Mental Health Review Tribunal, see the MHRT website.

Older people and the Mental Health Act

It is important to note that the Mental Health Act is only appropriate in work with older people in limited and specific circumstances.

Dementia is one of the main causes of vulnerability and dependency in later life. Late onset dementia typically progresses slowly and can take many years to develop fully. In its early stages sufferers may be forgetful and find it difficult to manage their own affairs effectively. But many older people with mild or moderate dementia continue to live in the community with appropriate help. There is also a 'grey area' when, for example, an older person has not been diagnosed as suffering from dementia but is confused and may be placing themselves at risk by leaving the gas on unlit occasionally or losing track of time (they may of course have an physical health problem which needs investigation: See Section 2 The main problems.)

However, is questionable whether it is ever appropriate to employ the provisions of the Mental Health Act to protect older people in this situation and there is no protective legislation designed to meet their needs. They may however be eligible for support, care or treatment from either their local social services department or the NHS under other legislation.

As noted in Section 3 on Mental capacity, when working with an older person with a progressive mental illness such as dementia it is crucial to reassess their needs and capacity on a regular basis. Taking account of the views of the person and their family and carers about the nature and effects of future deterioration is a key part of this ongoing assessment process (see Section 3 for more about this).

Most older patients enter psychiatric hospital on an informal basis with detention being reserved for those who actively object to admission. However, as a consequence of advanced dementia, many older patients require constant supervision and may even need to be restrained from leaving hospital for their own safety. This is also the case for a significant number of older people with dementia in care homes. This status is described by the Mental Health Act Commission as 'de facto detention': the older person has no practical means of exercising his/her theoretical right to leave hospital, yet they have not been 'sectioned' under the Act and so do not have the rights of a detained patient (see above).

This issue raises a number of ethical and legal challenges which were highlighted by the 'Bournewood case', concerning a man with learning disabilities who was detained in a psychiatric hospital for a sustained period without being the subject of a Mental Health Act 'section'. (See also the information on mental capacity below and in Section 3.)

The draft Mental Health Bill recognises this gap in the legislation and proposes to introduce separate safeguards to ensure that people who lack capacity and who require long-term care should come under the remit of the Commission for Mental Health. It also suggests that they (and their carers) should have the right to apply to the Mental Health Tribunal to challenge any detention and request a review if there are concerns about the quality or nature of care or treatment.

Next: Mental capacity