COP3 is a specialist assessment of capacity form used by the Court of Protection. Used to establish if a person has the mental capacity to make a specific decision. The Court of Protection only makes decisions in the best interests of those who have been assessed as lacking the mental capacity to make that decision for themselves. Form COP3 has two parts; Part A and Part B. Part A is completed by the person making the application to the Court of Protection, and Part B is completed by the specialist Mental Capacity Assessor.

What types of decision-specific mental capacity assessments are recorded on a COP3 form?

The most common mental capacity assessment that Thornton & Lee complete on a COP3 form is in support of applications to the Court of Protection to become a Property and financial affairs Deputy. However, we also complete many COP3 form assessments for applications for a Personal Welfare Deputy, for a Statutory Will, for a Gifting application, and to remove a Trustee from a Trust. All of our Mental Capacity Assessors are skilled and experienced in completing all types of mental capacity assessments for a COP3 form.

Do I need a Solicitor to make an application to the Court of Protection?

Whilst we always suggest that members of the public have an experienced legal professional to guide them through the application to the Court of Protection, members of the public can also make applications to the Court of Protection directly and the forms are downloadable on the Government website for everybody. The merit of using a legal professional is that it avoids long delays and additional fees should the Court of Protection reject your application due to your forms being completed incorrectly. However, we do regularly complete COP3 forms for members of the public who have chosen to complete the application paperwork themselves and are very happy to accept referrals directly from members of the public. Thornton & Lee’s role and remit is strictly to complete mental capacity assessments. Consequently, should you choose to make an application to the Court of Protection directly without an experienced legal advisor, the correct completion of the application forms is your responsibility. 

Who can complete a COP3

Official guidance for COP3 form completion lists appropriate professionals as medical practitioners or social care professionals as certified to complete COP3 forms. In practice, however, it can be frustrating and time-consuming trying to track down a professional experienced in mental capacity assessments who is able and willing to complete the form. NHS professionals are often reluctant or slow to respond due to work pressures, and Local Authorities do not have any statutory responsibility to complete these forms. At Thornton & Lee our Independent Social Workers offer a quick, professional and efficient solution to the stress of trying to source a professional willing to complete a COP3 mental capacity assessment. 

A new COP3 form was launched in July 2023, can I still use the old form

Please note that Senior Judge Hilder has confirmed to the Court of Protection Property and Affairs User Group that the 6-month window for using the old COP3 form has now expired, and any COP3 assessments submitted on old the old COP3 form (pre-July 2023) will be rejected unless they have “explicit confirmation that circumstances have not changed”.

Social Services already did a mental capacity assessment. Can’t I submit that to the Court of Protection?

Unfortunately, not. If you submit a mental capacity assessment even if it is for the same decision, for example, property and financial affairs, without it being formatted specifically on a form COP3, the Court of Protection will not accept the application. 

What legal framework is used to complete a form COP3 

The legal framework underpinning mental capacity assessments on a COP3 is the Mental Capacity Act (2005). The Mental Capacity Act provides a legal framework for acting and making decisions on behalf of adults who lack the mental capacity to make particular decisions for themselves. A key principle of the Mental Capacity Act is that mental capacity is presumed and the emphasis is upon the Mental Capacity Assessor to then establish evidence that the person being assessed lacks mental capacity for the decision in question. In order to make a decision under the Mental Capacity Act the person being assessed is required to understand, retain, weigh and communicate the relevant information for the decision in question. 

Why do I need to tell you so much information about their circumstances if I believe they don’t have capacity? 

The Court of Protection is clear that all persons being assessed must be supported to understand the relevant information for the capacity assessment. For example a property and financial assessment must include support explaining a basic level of the relevant information to the person being assessed such as the address of the property they own, where they bank, and income and expenditure, and also asking them who would like to support them with their affairs, and how, to be able to then assess if that person can retain and use the relevant information to arrive at their decision. 

Why do you have to ask them questions when I already know they don’t have capacity? 

We understand that this might be confusing or upsetting for family members that the appointment includes asking the person being assessed questions they are unable to answer. The Mental Capacity Act Code of Practice is clear that the person undertaking the assessment must do all that they can to explain the information relevant to the decision to the person being assessed, and the Court of Protection will not accept a mental capacity assessment on form COP3 which does not evidence how the relevant information has been explained to the person in an accessible manner, and evidence that following this explanation the person being assessed has been unable to understand, use or weigh the information. 

What does cognitive optimum mean

At Thornton & Lee we triage all referrals very carefully to ensure each person is assessed at their cognitive optimum, which essentially means that the appointment took place when they were at their best in terms of their memory and understanding. For example, a person with Alzheimer’s might be quite bright in the mornings but become increasingly confused by the end of the day. Hence the appointment would be booked in the morning. Some types of acute illness or infection can impact understanding and memory too, such as a urine infection, so the appointment would be booked once this has been resolved. The Mental Capacity Assessor will also in addition to the timing of the assessment consider the location, involvement of trusted others, and communication method to make sure that as far as possible the person is relaxed, comfortable and the communication approach gives them maximum scope to both understand but also express any wishes or views they might have during the appointment. 

Can a COP3 assessment be completed by video? 

In principle yes, mental capacity assessments can be completed by video, and the Court of Protection does accept COP3 assessments undertaken virtually. At Thornton & Lee we undertake many assessments virtually each week with the COP3 form also explicitly requesting information as to whether the assessment was completed virtually or face to face and why. The essential aspect to consider when weighing whether the assessment should take place face-to-face or virtually is the impact on the person being assessed. The Mental Capacity Act Code of Practice is clear that the Assessor must take all practicable steps to ensure that the person being assessed is supported to understand and engage with the assessment and so ultimately video assessments can be utilised for those where it is evident that they will not be disadvantaged from understanding, using and weighing the relevant information for that decision by the assessment taking place virtually over face to face.

What do you do if they can’t communicate verbally?

At Thornton & Lee all of our Mental Capacity Assessors are trained in completing mental capacity assessments for those who are non-verbal. We have a vast library of resources and also experience in using a variety of different communication methods. So you can be reassured that the person being assessed is given the maximum opportunity to engage in a meaningful way and the right platform to be able to communicate any wishes or views that they have non-verbally. 

Is it possible for the person to later regain capacity?

The COP3 form dedicates a section to this question, and in principle yes absolutely it’s possible in a small number of cases. For example, a younger adult with a learning disability, who has always had support from a parent or carer, might not yet have had the opportunity to develop and ‘acquire’ understanding and ability to use the information to make a capacious decision. With the right level of support and focus on independent living skills or financial management over time, they could go on in the future to have mental capacity. Another example might be an adult who has experienced an acquired brain injury and lost many of the skills and understanding over a particular decision. With the right focus on rehabilitation and practising skills over time, it might be possible for an adult with an acquired brain injury to ‘regain’ mental capacity in the future. 

Can a COP3 assessment be completed for a patient still in hospital? 

In principle yes, a mental capacity assessment can be completed when the person is still in hospital. Although we do generally find people do better in their own environment there are occasions when it is not possible to delay the mental capacity assessment and so it must take place in the hospital. However, the person being assessed must be at their ‘cognitive optimum’, and as such they must be free from any acute illness or infection that might impact on understanding and memory such as an infection, constipation, or unstable diabetes for example. If undertaking an assessment in a hospital it is also important that a quiet and distraction-free area is found to undertake the assessment to give the person the best opportunity to engage in a meaningful way with the appointment process.

How long will a COP3 assessment appointment take 

It depends on the individual. If they enjoy the ‘chat’ with our Mental Capacity Assessor, as is often the case, then the appointment can take anything from 45 minutes to 2 hours. However, if the person is very poorly and is struggling to engage with the assessor despite the supportive and kind approach then the assessment will be streamlined to gather the relevant information as promptly and efficiently as possible.

How much is a COP3 assessment 

At Thornton & Lee our video COP3 assessments have a fixed fee of £375.00. However, we know that the virtual world is not suitable or preferred by everyone and so if a face-to-face appointment is necessary or deemed to be the most appropriate method of assessment for a COP3 form for that person, we have assessors based throughout England and Wales and can offer a quote for travel.

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Usually, a Deprivation of Liberty Safeguard (DoLS) application would be made for an individual who has been assessed as, or assumed not to have the mental capacity to understand their health and social care needs, who may be at risk from harm should they leave the current place they are staying (whether that be a hospital, care home or their own home). A DoLS can be requested for individuals staying in a care home on either a temporary or permanent basis. However, a DoLS can also be applied for in a community setting, where there is evidenced risk such as the individual being known to wander, and the individual lacks mental capacity around these risks. Currently the Local Authority can authorise who can be deprived of their liberty in a care home or hospital, whereas in other settings it is the Court of Protection who authorise whether a person might be deprived of their liberty. Only those people who have been assessed as lacking mental capacity may be deprived of their liberty under a DoLS

Why is the Court of Protection reluctant to grant an Order to sell a property when the individual does not have a DoLS in place?

From time to time, we are approached by Solicitors asking whether we can support as there is no DoLS in place for an individual ahead of a Property and Financial Deputyship Order application, to the Court of Protection, making it difficult to obtain an Order from the Court of Protection to sell a property in the absence of a DoLS. The Court of Protection are reluctant to grant an Order to sell an individual’s property / home without a DoLS in place as it could be assumed that the individual in question actually does have mental capacity to decide where and how their care needs should be met, and consequently the individual might later decide that they would rather be living in their own home as is the right of any capacious individual, even if others consider their decision to be ‘unwise’.

When should there be a DoLS in place for individuals residing in a care home?

Of course, not every resident living in care home is being deprived of their liberty. In fact, a vast number of residents have no difficulties with their cognition or memory and have made an informed decision to willingly enter into a care home either because their needs were in excess of what could safely be met with a care package at home, or because the social element of residing in a care home appeals to them. However, unfortunately there still remains much inconsistency and inaccuracy between staff working in care homes as to when an individual without mental capacity might be being deprived of their liberty. I still meet care home managers on a regular basis who respond when questioned regarding a DoLS being in place “But they are very happy here, and they make no attempts to leave”. My response is “So what would you do if your resident asked you to call them a taxi right now, and that they were leaving. Would you call them one? Or if a resident collected a few things from their room and made a beeline to the front door to exit, would you permit them to go? Would you lock the front door as you know the resident would be at risk of harm due to their impaired cognition / memory should they leave the care home entirely independently?”. The care home resident does not need to be attempting to or asking to leave for legal authority to deprive them of their liberty by way of a DoLs being sought. Furthermore, without a DoLS in place the resident is essentially being deprived of their liberty illegally. If the response from the care home is that the resident would not be free to leave if they requested to go, or made attempts to leave, irrespective of whether they can practically call their own taxi or mobilise out of the front door, then they are being deprived of their liberty, and legally those being deprived of their liberty without the mental capacity to make this decision should have a DoLS in place. 

What does the Law say of when an individual might be being deprived of their Liberty?

What is the Acid Test?

The acid test states that a person is deprived of their liberty when:

• They are subject to continuous supervision and control and
• Are not free to leave

‘When answering both questions staff should consider if they exercise complete and effective control over a person’s care and movements and decisions about their care. A person does not have to be asking to, or attempting to leave to be deemed not free to leave. Care staff should ask what they would do IF the person tried or asked to leave. If the answer is that they would stop the person then the person is NOT FREE to leave within the meaning of the ACID TEST [Ref.P v Cheshire West & Chester Council; P & Q v Surrey County Council [2014] UKSC 19]’

So, what can I do as a Solicitor if I believe the individual is being deprived of their Liberty yet there is no DoLs in place?

I find the simple and most effective way of ensuring that care homes make a DoLS application when an individual lacks mental capacity into their care needs and accommodation and the resident is being deprived of their liberty, is to politely remind them of the Cheshire West case and the Acid Test. I haven’t met a care home yet who further resists making a DoLS application when the law is pointed out to them. And finally, let’s not forget what the very purpose of a DoLS to be?! To ensure that individuals human rights are respected, including where one lives, the care one receives, and the informed choices and risk one is entitled to take, as long as we understand and are able weigh up the consequences of the choices that we are making. These are our human rights as autonomous, self-determining, capacious human beings, regardless of age or disability. 

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