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Mental Capacity Act practice guidance

Part 30


Code of Practice 5.56-5.57; 4.55-4.56; chapter 16

The MCA requires the decision-maker to consult with anyone who knows the person who may lack capacity (MCA section 4). This means that a decision-maker may be speaking to several family members and friends. (Part 8: Best interests decisions)

There is concern that this may breach confidentiality. For instance, seeking a neighbour’s views about someone’s wishes to live at home rather than go into care, gives the neighbour more information about the person’s condition than is appropriate.

It is important to:

  • explain why you may be asking questions and seeking views, but be clear that you are unable to disclose anything that breaches confidentiality
  • balance someone’s right to confidentiality with the right to have decisions based on all possible available information.

Everybody is protected by the Data Protection Act 1998. This requires organisations to:

  • process personal information fairly and lawfully
  • keep only necessary information
  • use or share it only for stated purposes
  • collect only information that is relevant
  • keep information only for as long as necessary
  • update information as appropriate.

All NHS services and local authorities are protected by a Caldicott Guardian – someone appointed to ensure the organisation handles information correctly. This requires the organisation to justify why they use confidential information, using a minimum of information when necessary, on a need-to-know basis and requires all staff to understand their responsibilities and comply with the law.