What Happens if Someone Refuses a Mental Capacity Assessment for a Deputyship Order?

When making a deputyship application to the Court of Protection, a mental capacity assessment is usually required to determine whether a person has the ability to make the relevant decision for themselves. This assessment is commonly completed using a COP3 form.

Sometimes, however, the person being assessed may be reluctant or unwilling to engage in the assessment process. These situations can be emotionally sensitive and legally complex for families and professionals alike.

At Thornton & Lee, our experienced team of mental capacity assessors regularly supports families in these difficult circumstances. We understand that people may feel anxious, fearful, confused, or distressed about the assessment process, and we take a compassionate, person-centred approach aimed at reducing distress and maximising engagement wherever possible.

Importantly, a refusal to engage with a mental capacity assessment is not, in itself, evidence that a person lacks mental capacity. The Court of Protection still requires robust evidence within the COP3 form demonstrating that, on the balance of probabilities, the person is unable to make the relevant decision because of an “impairment of, or disturbance in the functioning of, the mind or brain”, in line with the Mental Capacity Act 2005.

Why might someone refuse to engage in a COP3 mental capacity assessment?

There are many reasons why a person may appear reluctant to participate in a deputyship mental capacity assessment, including:

• Fear or anxiety about losing independence or control
• Previous negative experiences with professionals
• Symptoms associated with mental illness or cognitive impairment, including paranoia, confusion, or lack of insight
• Communication difficulties
• Trauma or distressing past experiences
• Misunderstanding the purpose of the assessment
• Concerns about finances, care arrangements, or decision-making being taken away from them

In many cases, reluctance to engage does not stem from deliberate refusal, but from underlying emotional, psychological, or cognitive difficulties.

What is the legal framework for COP3 mental capacity assessments?

COP3 deputyship assessments are carried out in accordance with the Mental Capacity Act 2005 and its accompanying Code of Practice.

The Mental Capacity Act is built around five key principles, including:

• A presumption that every adult has capacity unless proven otherwise
• The requirement to take all practicable steps to support a person in making their own decision
• Recognition that a person is entitled to make an unwise decision if they have the capacity to do so

Under the Act, a person lacks capacity only if they are unable to:

• Understand the relevant information
• Retain that information long enough to make the decision
• Use or weigh the information as part of the decision-making process
• Communicate their decision

And, this inability must be caused by an impairment of, or disturbance in, the functioning of the mind or brain.

Mental capacity assessments are also both decision-specific and time-specific. This means that simply because a person may previously have been assessed as lacking capacity for another decision, or at another time, does not automatically mean they lack capacity for the decision currently before the Court of Protection.

The Court expects assessors completing COP3 forms to gather balanced, evidence-based information and to make genuine efforts to support the person’s participation in the assessment process.

Our approach at Thornton & Lee; Preparation and background information are key

At Thornton & Lee, careful preparation is central to our assessment process.

Before arranging an appointment, our assessors gather detailed background information to help us understand the person’s individual needs, circumstances, communication style, and any potential barriers to engagement.

This may include:

• Speaking with family members, carers, or professionals involved in the person’s care
• Reviewing medical records, care plans, and relevant documentation
• Understanding diagnosed or suspected cognitive impairments or mental health conditions
• Identifying how symptoms may affect communication, understanding, or engagement during the assessment
• Exploring whether there is a trusted individual who could help reassure the person during the appointment
• Considering the most suitable environment for the assessment, such as the person’s home or another familiar setting

This preparation allows us to tailor the assessment approach to the individual person, rather than taking a one-size-fits-all approach.

Reducing distress and building rapport

Our assessors understand that people often engage more effectively when they feel safe, respected, and understood.

Where appropriate, we may initially discuss familiar or reassuring topics, such as hobbies, interests, family life, or previous occupations, before moving into more formal assessment questions.

We also:

• Allow additional time for appointments
• Build in breaks where needed
• Adapt communication methods to suit the person’s needs
• Avoid unnecessarily distressing topics where possible
• Work sensitively around known triggers or traumatic experiences

Transparency is generally important, and wherever appropriate, we explain the purpose of the assessment clearly and accessibly. We also find that engagement is often improved where a trusted family member or professional has already helped prepare the person for the assessment in a calm and supportive way.

Can a COP3 assessment still be completed if engagement is limited?

In some cases, yes.

Even where engagement during the appointment is minimal, it may still be possible for a skilled mental capacity assessor to gather sufficient evidence for the Court of Protection.

When we are aware in advance that a person may struggle to engage, our assessors carefully adapt their questioning style and assessment structure to obtain the clearest possible evidence while minimising distress.

In addition to the interview itself, relevant supporting evidence may also be considered, including:

• Medical records
• Care plans
• Deprivation of Liberty Safeguards (DoLS) documentation
• Professional observations
• Family or carer observations

However, the Court of Protection still expects assessors to provide balanced and evidence-based conclusions, including evidence obtained directly from meeting the person.

Can a COP3 assessment be completed without meeting the person?

In most circumstances, no.

At  Thornton & Lee, our assessors cannot complete a COP3 form for submission to the Court of Protection without attempting to interview the person regarding the relevant decision.

Collateral information such as medical records and care plans can support the assessment, but they cannot replace direct assessment altogether.

If a person refuses to engage during an initial appointment, our usual approach is to carefully review the circumstances, consider whether adjustments could improve engagement, and, where appropriate, arrange a further appointment using a revised and more supportive approach.

Can an assessment still proceed if someone refuses?

Potentially, yes.

Where available evidence suggests that the person may lack capacity for the relevant decision, it may still be appropriate to attempt an assessment despite some reluctance to engage.

In these situations, our assessors carefully consider:

• Whether the assessment can safely be delayed
• Whether proceeding may cause avoidable distress
• The risks of not progressing the deputyship application
• The person’s current care, financial, or welfare needs
• Whether a supportive and proportionate approach could still enable meaningful participation

Any decision to proceed is made on a case-by-case basis and always guided by the principles of the Mental Capacity Act 2005.

In our experience, it is relatively uncommon for a person to remain entirely unable or unwilling to engage when the assessment is approached with patience, kindness, flexibility, and sensitivity. However, there are occasional situations where, despite repeated attempts, meaningful engagement is not possible. In such circumstances, it may not be possible to complete the COP3 assessment.

How Thornton & Lee can help

Applying for deputyship can feel overwhelming, particularly where a loved one is anxious, distressed, or reluctant to participate in the mental capacity assessment process.

At  Thornton & Lee, our experienced mental capacity assessors provide compassionate, legally compliant, and person-centred COP3 assessments designed to support both families and the individual being assessed.

We understand the importance of balancing:

• The legal requirements of the Court of Protection
• The dignity and wellbeing of the person being assessed
• The emotional concerns of families and carers

Our team can discuss any worries you may have, help plan the most supportive approach for your loved one, and maximise the likelihood of meaningful engagement with the assessment process.

If you would like advice or support regarding a COP3 mental capacity assessment or deputyship application, contact Thornton & Lee today for a no-obligation discussion about how we can help.

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