This is a staged test that must be applied in order to assess mental capacity.
The first stage is to determine if the person can make the decision.
The second stage is to determine if the reason the person cannot make the decision is because of an impairment or disturbance in the mind or brain and why.
NOTE - if it is because of the impairment/disturbance, then the Mental Capacity Act applies.
If there is no impairment or disturbance but you believe the person is incapacitated due to coercion/undue influence - this may be dealt with through alternative legal routes and you should take legal advice. If the Mental Capacity Act assessment is stopped ensure that consideration is given and action taken to support and protect the person concerned if needed: for example, Adult Safeguarding referral, Needs and Wellbeing Assessment, Care Act Advocate.
Stage One – The Functional Test
If you answer no to any of the following questions, the adult should be assessed as lacking the mental capacity to make the specific decision
Can the adult understand the information relating to the decision to be made?
Can the adult retain the information for long enough for the decision to be made?
Can the adult use information to weigh up the pros and cons of the decision?
Can the individual communicate their decision, by any means possible?
If the person has capacity and can communicate their decision tick ‘YES’
If you consider that the person is unable to understand and/or retain, and/or use or weigh relevant information, but it is clear that they are communicating something, then the record of your assessment should not say that they are unable to communicate their decision – it should say that they can communicate (so tick YES).
Then in the evidence box go onto say that although they are unable to make the decision, what they are communicating are wishes and feelings, and give examples.