Understanding the Mental Capacity Act
Guidance for frontline housing staff and contractors
What do you need to know?
- You have a duty to comply with the Mental Capacity Act.
- The Mental Capacity Act will apply if there is any doubt that the person has the mental capacity to make decisions about sharing information or about their own safety.
- If you are unsure about an individual’s mental capacity you should seek support from colleagues in social care.
- In most cases you should be able to assess whether a person has the mental capacity to make a specific decision – see the two-stage functional test of capacity.
The two-stage functional test of capacity
The Mental capacity Act ‘Code of practice’ states that: ‘The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made’. 
In order to decide whether an individual has the capacity to make a particular decision, you must answer two questions:
Stage 1: is there an impairment of or disturbance in the functioning of a person’s mind or brain? If so,
Stage 2: is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
The Act states that a person is unable to make their own decision if they cannot do one or more of the following four things:
- understand information given to them
- retain that information long enough to be able to make a decision
- weigh up the information available to make the decision
- communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
Every effort should be made to find ways of communicating with someone before deciding they lack capacity to make a decision, based solely on their inability to communicate. You will also need to involve family, friends, carers or other professionals.
The assessment must be made on the balance of probabilities – is it more likely than not that the person lacks capacity? You must be able to show in your records why you have come to your conclusion that capacity is lacking for the particular decision.
The key principles of the Act
You should understand the basic principles of the Mental Capacity Act when making decisions about sharing personal information for safeguarding purposes. There are five key principles.
- Principle 1: a presumption of capacity. Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability.
- Principle 2: individuals being supported to make their own decisions. A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves (‘gentle persistence’). If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
- Principle 3: unwise decisions. People have the right to make decisions that others might regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people.
- Principle 4: best interests. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests.
- Principle 5: less restrictive option. Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be weighed up in the particular circumstances of the case.
- If a person making an unwise decision lacks capacity, then a decision needs to be made in the person’s best interests in compliance with the Mental Capacity Act.
- A person with capacity is entitled to make unwise decisions relating to abuse.
- If an unwise decision appears to be related to exploitation, coercion, grooming, undue influence or duress, you should seek support from colleagues in social care and the police.
- You should work with social care staff to ensure that individuals are given the opportunity to disclose undue influence and seek appropriate support.
- You should share safeguarding information if a person with capacity is making an unwise decision that puts others at risk.
Housing LIN: The Mental Capacity Act and supported housing