Assessing the mental health needs of older people

Mental capacity


Start with the assumption that the older person has the capacity to make decisions for themselves, unless and until that assumption is proved wrong.

Older people with mental health problems often create anxiety and concern in those involved with them, particularly about keeping the individual and those around them safe. Effective interventions are complicated further when people have difficulty communicating with an older person, and where there are concerns about their capacity to make decisions.

You may have reservations about involving a person with mental health needs in their own assessment and in decision making about their care because of doubts about their capacity to understand or engage in what is happening and to make appropriate decisions. The Department of Health describes a person 'with capacity' as someone able to understand, retain and weigh up information relevant to the decision and its consequences. Capacity is not a fixed concept, but relates to a particular decision at a particular time. Different decisions and activities require different levels of capacity.

Where someone is judged not to have capacity, professionals are authorised to act in the 'best interests' of the person, where there is a necessity to act, under the 'common law doctrine of necessity'. Acting in what professionals consider to be the person's best interests has sometimes been a substitute for trying to establish an older person's views and involve them in the process. Friends, relatives or carers of an individual do not have any legal power to make decisions on behalf of the individual unless the individual has made provision for this in advance, for instance through an advance directive or an Enduring Power of Attorney. As a result, family members have often had to negotiate a distinctly grey area of legality when making decisions on behalf of an older relative. In some cases this has resulted in abuse of the older person's rights.

National guidance on dementia care emphasises that people with dementia should have the opportunity to make informed decisions about their care and treatment. Where people with dementia do not have the capacity to make decisions, professionals are expected to follow Department of Health guidelines. (Reference guide to consent for examination or treatment, 2001, and Seeking consent: working with older people, 2001).

See Law and policy section for further information.

Involving advocates

If you are a practitioner in a non-specialist setting, it is unlikely that you will be involved in determining whether an older person should be admitted to psychiatric hospital, but the issues surrounding mental capacity are relevant for all who work with older people with mental health needs. In situations where an older person lacks capacity, it would be good practice to involve an advocate to represent their interests. See Law and policy section for the legal situation with regard to advocacy.

Ideas from practice

In their publication Hear what I say: Developing dementia advocacy services, Dementia North and Northumbria University discuss the role of family members as advocates:

Families and carers are often thought to be the natural advocates for people with dementia. Sometimes family members can be very effective advocates: when they know the person with dementia and their wishes very well; when they care strongly about the person with dementia having their needs and wishes met; and when representing the person with dementia presents them with no conflicts of interest. However, sometimes the emotional, practical and financial complexities of family life make it very difficult for family members or carers to be an advocate for a relative with dementia. (26)

The Mental Capacity Act introduces a new role of Independent Mental Capacity Advocate for those without capacity who have no relatives or friends to act for them. In July 2005 The Department of Health commenced a consultation exercise on how the new Independent Mental Capacity Advocate Service should operate.

Further information

For more information on the Mental Capacity Act, see Section 8. The full text of the Act is available on the Office of Public Sector Information website.

For more about the Bournewood gap and the response of the mental health charity Mind, see the Mind website.

For more about advocacy, see the Joseph Rowntree Foundation report Are you listening? (27). For other relevant links, see Advocacy and older people with mental health needs (Word document).

See also Best Interests: Guidance on determining the best interests of adults who lack the capacity to make a decision (or decisions) for themselves: England and Wales (187kb PDF file), a report published by the Professional Practice Board of the British Psychological Society.

Next: Assessing risk