Understanding the Mental Capacity Act

Guidance for frontline housing staff and contractors

What do you need to know?

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’. [19]

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:

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.

Unwise decisions


SCIE MCA resources

The Mental Capacity Act Code of practice

Housing LIN: The Mental Capacity Act and supported housing