Mental Capacity Act 2005 (MCA)

Mental capacity is the ability to make everyday decisions.

People who work with service users who may lack capacity have a legal duty to act in accordance with the principles set out in the MCA (below).

 

Five principles.

• Adults have the right to make their own decisions and should be assumed to have the capacity to do so unless there is evidence that they don’t.
• People have the right to be supported to make decisions.
• The right to make decisions includes the right to make decisions that are unwise. It shouldn’t be assumed that someone lacks capacity just because their decisions appear eccentric.
• If someone lacks capacity anything done on their behalf should be done in their best interests.
• Any decision made for someone who lacks capacity should consider all the options and the option chosen should be the one that is the least restrictive of basic rights and freedoms.

Is there anything else housing officers need to know about the MCA?

The MCA says that capacity is decision specific. Someone who is unable to make complex decisions may be able to make other decisions. Our duty is to help people make the decisions they are able to make by explaining things clearly and in other ways we can help – for example with a face to face interview or home visit or by working with others who know the person well.

Does the MCA only apply when people have mental health issues or a learning disability?

No. Someone may lack the capacity to make decisions because of the effects of alcohol or drugs or because of physical ill health. In a situation like this the best action may be to come back to the decision that needs to be made at another time.

What if a decision needs to be made about a tenancy matter and the tenant lacks capacity?

If the tenant did not appoint someone to make decisions for them under a power of attorney whilst they still had capacity, an application can be made to the Court of Protection (COP) for a deputy to be appointed or for an order about the tenancy. If the Personal Finance Team is managing a tenant’s finances they will progress this when it is necessary. Or refer to Adult Social care Access and Support Contact the adult social care access and support team - Camden Council by phone or email [email protected].  See also their practice site.

How can a tenancy be ended if a tenant lacks capacity, has gone into residential care and will not be returning home?

If a tenant lacks the capacity to begin or end their tenancy and there is no-one with a power of attorney and no deputy has been appointed by the COP, the tenancy can be ended by a social worker following the process set out in ASC’s starting and ending a tenancy guidance which was agreed by ASC senior management team in December 2018.

The adult social care process has been published on the ASC guidance site and can be read here.

Assigning a tenancy

Sometimes a tenant who is moving into residential care might leave behind a family member who, had the tenant died, had the right to succeed.

Sometimes, in cases like this, the person would like the tenancy assigned to them but, if the tenant lacks capacity, they cannot.

It is therefore worthwhile, with older residents, having conversations with them around assigning their tenancy while they are still resident and able to make that choice.

The full assignment guidance outlines how to deal with ending a tenancy where there are mental capacity issues in more detail (see section 6)

You can read more about assignments more generally here

When should possession proceedings be considered?

Legal Services advise that an application to the COP is usually faster and cheaper than possession proceedings. Not using the tenancy address as their only or main home is a tenancy condition breach so possession action is possible but would not usually be necessary or appropriate if an application to the COP is being made. Discuss with a manager if you are in doubt.

Who can help with a complex case?

It can often be helpful to sound out a colleague about a case especially if it is complex or you haven’t encountered this situation before. Jo Adams or Cath Armstrong and Karen King in the service development team may be able to help or you can run your case past a manager or discuss in your team.