Assessing the mental health needs of older people
Protecting vulnerable adults
This section focuses on the legal and policy framework for protecting vulnerable adults (see Section 7: Abuse).
Summary: protecting vulnerable adults
At present there is no adult protection legislation in the UK although the Department of Health policy document No secrets (24) offers guidance to social services departments to help protect 'vulnerable adults' at risk of abuse by developing multi-agency policies and procedures.
Research identifies physical abuse, psychological abuse, and neglect as the most common types of abuse in care homes. The misuse of medication - 'chemical restraint' - is also a recognised feature of institutional abuse.
The Commission for Social Care Inspection has a role in ensuring abuse does not take place in service settings; abuse issues are also highlighted in the Mental Capacity Act 2005.
The Protection of Vulnerable Adults scheme was introduced by the Care Standards Act 2000. It aims to ensure that no one is allowed to work in the care sector if they have ever abused, neglected or otherwise harmed vulnerable adults in their care or placed them at risk.
The Sexual Offences Act 2003 makes it an offence for those engaged in providing care, assistance or services to someone with a learning disability or mental disorder to engage in sexual activity with that person whether or not that person has the capacity to consent, although this does not apply if the sexual relationship pre-dates the relationship of care, which would often be the case with dementia.
At present there is no adult protection legislation in the UK, although the policy document No Secrets (57) offers direction and guidance to social services departments to help protect 'vulnerable adults' at risk of abuse. However this is not, like child protection legislation, in statute,.
The aim of No secrets is to ensure that key local agencies - particularly but not solely social services, health authorities and the police - work together to protect vulnerable adults from abuse, by developing local multi-agency policies and procedures. The document provides guidance on how strategies for preventing and dealing with the abuse of vulnerable adults should be developed locally. The policy also describes principles around which agencies should develop their work. A key principle is that agencies should support individuals to live independently and make their own choices.
Many local authorities now have 'adult protection' policies, and when abuse is of a serious nature, 'case conferences' may be held to decide what needs to be done to ensure the protection of the vulnerable adult. (See, for example, extracts from the Kent and Medway Multi-Agency Adult Protection Policy in Section 7.)
There is no specific data on the extent of abuse or neglect in service settings, although there have been a number of high-profile cases of abuses of older people with mental health problems in hospital wards and care homes. Research identifies the most common problems as physical abuse (e.g. beatings, restraint); psychological abuse (e.g. withdrawal of care or food); and neglect (e.g. leaving residents in soiled incontinence pads). The misuse of medication - 'chemical restraint' - is also a recognised feature of institutional abuse, and this should be tackled by staff training, improvements in the quality of care, closer monitoring of the prescribing and giving of medication and enhanced rights for users and carers.
The raising of care standards and the role of the Commission for Social Care Inspection in monitoring these standards play a key role in identifying abusive regimes and practices and in reducing the risk of abuse in services (see Further information).
The Mental Capacity Act also has a number of powers which relate directly to protecting older people who lack capacity in both domestic and service settings: see above, Mental Capacity Act.
Provision for the Protection of Vulnerable Adults (POVA) scheme is made in Part 7 of the Care Standards Act 2000.(58) At the heart of the POVA scheme is the POVA list. The POVA scheme will act like a workforce ban. From 26 July 2004, individuals should be referred to, and included on, the POVA list if they have abused, neglected or otherwise harmed vulnerable adults in their care or placed vulnerable adults in their care at risk of harm. By making statutory checks against the list, providers of care must ensure they do not offer such individuals employment in care positions. POVA checks are requested as part of disclosures from the Criminal Records Bureau.
The POVA scheme will add significantly to current pre-employment checks - including confirming identity, requesting disclosures and obtaining references - that providers of care should carry out before offering individuals employment in care positions.
From its inception, the POVA scheme applied to registered care homes and registered domiciliary care agencies only. It will be extended to adult placement schemes shortly, once such schemes come within the regulatory framework of the Care Standards Act 2000. At the present time the POVA scheme does not apply to the NHS and independent health care sector.
These regulations will help ensure that older people with mental health problems, particularly those in long-term care, are protected from abuse and harm.
The Sexual Offences Act 2003 was passed with the aim of protecting vulnerable adults and children from sexual abuse and exploitation.
A number of the Act's provisions may be relevant to older people with mental health problems, including:
- the introduction of a number of new offences to protect 'at risk' groups such as people with learning disabilities and other groups with reduced capacity such as people with advanced dementia
- strengthening the Sex Offenders Register to ensure that the location of people who have committed serious sex-related crimes are known to the police
- addressing the fear of sexual crime
- strengthening and clarifying the meaning of 'non-consensual' sex and overhauling the law on consent: the Act introduces a test of 'reasonableness' on consent and a list of circumstances in which it can be presumed that consent was very unlikely to have been given, e.g. when the victim was asleep.
The sections of the Act covering offences committed against those who, because of a very profound mental disorder, lack the capacity to consent to sexual activity may be relevant to older people with a 'mental disorder' who are service users. The Act specifically recognises that whilst the vast majority of people working in the care professions act compassionately, it is clear that some unscrupulous individuals have taken advantage of their position to commit a 'breach of a relationship of care' by sexual abuse. It is now an offence for those engaged in providing care, assistance or services to someone with a learning disability or mental disorder to engage in sexual activity with that person whether or not that person has the capacity to consent. However, this does not apply if the sexual relationship pre-dates the relationship of care: for example, where a spouse (or long-term partner) is caring for their partner following the onset of a mental disorder, e.g. dementia, and continues to have a consensual sexual relationship with that person.
For more about abuse in service settings, see Section 7, Institutional abuse.
The Department of Health publication No secrets offers direction and guidance to social services departments to help protect 'vulnerable adults' at risk of abuse.
The Department of Health also publishes a practical guide to the Protection of Vulnerable Adults (POVA) scheme, which includes changes to the requirement for Criminal Records Bureau Disclosures.
The Commission for Social Care Inspection is responsible for setting standards and inspecting care homes and care agencies, and any concerns about abuse in care homes or by social care agencies should be reported to them.
An online version of the Sexual Offences Act is available on the Office of Public Sector Information website.
Action for Elder Abuse provides information about the abuse of older people and offers information and support.