Assessing the mental health needs of older people

The broader context


This section focuses on areas of law and policy that primarily affect the treatment and care of older people with a mental illness. It is particularly targeted at non-specialist workers who want to know more about the legal framework, including the circumstances under which a person can be detained in a psychiatric setting and what the law says about helping an older person who lacks capacity to make their own decisions.

Summary: The broader context

Policy trends

Broadly there are two types of legal provision for social care: permissive, where the law states that agencies 'may' or 'could' provide support, and obligatory, where the law 'requires' or lays down a 'duty' for a statutory agency.

The vast majority of legislation relating to older people's welfare is permissive, and access to services is largely restricted to those 'in greatest need'. Most older people who need support from the NHS or local authority, and particularly 'long-term support, have to fulfil the agency's 'eligibility criteria' before they can be allocated a service, and most agencies must first carry out an 'assessment of need' prior to allocating a service (see Assessment of need section).

A number of policy trends can be discerned:

Whilst much legislation is relevant to enhancing the lives and well-being of older people, relatively little is directly relevant to supporting protecting older people with a diagnosed mental health problem. Although there has been a positive policy shift towards the promotion of mental health and the prevention of mental ill health in later life, there is still much to do to integrate older people's services and mental health services. The government's vision for older people's mental health services is set out in Securing better mental health for older adults (47).

The following legislation, while not specifically aimed at older people with a mental health problem, is relevant:

The National Health Service and Community Care Act 1990

This Act introduced a broad requirement for local authorities to help vulnerable adults remain in the community, preventing or delaying admission to institutional care. The Act requires local authorities to carry out assessments of people who 'appear to be in need' of community care services and to arrange packages of care. Most social services departments operate a set of 'eligibility criteria' which define who is eligible for an assessment of need as well as support from services. The assessment process has largely been subsumed under the Single Assessment Process, which is outlined below.

The Disabled Persons (Services, Consultation and Representation) Act 1986

This Act strengthens the provisions of existing legislation (The Chronically Sick and Disabled Persons Act 1970) and requires local authorities to meet the needs of disabled people. Services covered include: help in the home; recreational facilities outside the home; assistance with transport; provision of aids and adaptations; holidays, meals and telephones. The NHS and Community Care Act (see above) reinforces this by stating that when local authorities are assessing someone's needs for community care services, and it become clear that the person is disabled, the local authority must also consider their need for the services outlined above.

The National Service Framework for Older People 2001

The National Service Framework (NSF) for Older People (48); represents a major shift in recognising the needs of older people for health and social care services, and offers a framework of standards for the delivery of care and treatment. The NSF states that older people who have mental health problems will have access to integrated mental health services, provided by the NHS and councils to ensure effective diagnosis, treatment and support for them and their carers. The core elements of a high quality mental health service are defined as:

Other relevant legislation

The Human Rights Act 1998 introduces a number of basic civil and human rights for all citizens. Article 5, 'The right to liberty and security of person', is the article which may be most likely to apply to the detention of people with mental illness or with reduced capacity. Article 8, 'The right to respect for private and family life, home and confidentiality' is also relevant and may be used to stop the removal of a frail older person from one care home to another due to closure. (It should be noted that this statutory responsibility is not shared by the independent sector, which provides most of this type of care.) The Freedom of Information Act 2000 gives people a general right of access to information held by, or on behalf of, public authorities, and promotes a culture of openness and accountability in public sector bodies. In January 2005 members of the public gained the right to make a request for any information held by a public authority, to which the authority must respond. The authority is obliged to release such information unless it is not in the public interest to do so, it would costs a lot of money to seek it, or doing so would damage an individual's commercial interests. The Act does not provide right of access to personal information, but this may be accessed under the Data Protection Act 1998, subject to certain exemptions. Service users can ask for access to their case records under this Act.

Further information

A useful summary of the key aims and implementation of the NHS and Community Care Act can be found in Lorna Easterbrook's Moving on from community care (49). For more about the Human Rights Act, see the Liberty website.

The National Service Framework for Older People is available on the Department of Health website.

More about the Freedom of Information Act and the Data Protection Act can be found at the website of the Information Commissioner's Office.

Help the Aged and Age Concern both provide general information on a wide range of policies of relevance to older people.

Next: Assessment of need