COP3: A Guide for Social Workers

Created: 10/31/2021

As a Social Worker, you may be asked from time to time to complete a COP3 mental capacity assessment.  You may have completed several mental capacity assessments in the past but not come across a COP3 assessment before. If this is the case this short guide will assist you. This guide has been updated since it was originally written to reflect changes to the COP3 form. COP3 simply refers to the form number. It is a form used in the Court of Protection and in a similar fashion to other Court of Protection forms, it is numbered. Therefore a COP3 assessment is simply a mental capacity assessment. It is evidence that the Court of Protection requires to demonstrate that a person lacks the mental capacity to make a particular decision. There are two parts to a COP3 form, part A and part B. Part A is completed by the person making the application to the Court of Protection (or a solicitor on their behalf) and Part B is completed by the mental capacity assessor.

What decisions might require a COP3?

In our experience, the main reason we are asked to complete a COP3 mental capacity assessment is where a person or company is applying to become a deputy for either property and financial affairs or personal welfare. You can find out more about becoming a deputy here. However, a COP3 report can be used to evidence a lack of mental capacity for any decision that the Court of Protection can rule on. You may be asked by a family member or their solicitor to complete a COP3 report. If so, it is usually important to complete it a soon as possible because it is likely that decisions already need to be made, or bills paid and the application usually takes several months from when Court officials receive the application which includes your COP3 mental capacity assessment.

What to include in a COP3 report?

Part B of a COP3 report starts with you identifying who you are and your experience. This is not a job interview or autobiography. However, it is an opportunity for you to succinctly explain why your opinion counts. What mental capacity assessments have you completed before and in what capacity? Have you had any relevant formal training such a the Best Interests Assessor course? Next you will be required to identify the salient information you have used to make a capacity determination? This is a step often missed in the recording of mental capacity assessments, and it is vital for anyone reading your report. It helps the Court of Protection determine that you have considered all the relevant information, and not based your determination on information that is not relevant; doing so can set the bar too high, discriminate and lead to the wrong conclusion. Do not forget that you can always check for any updates in the really useful guides from 39 Essex Chambers. The main part of Part B is the assessment itself. Once you have identified the decision being made (this is obtained from the information in Part A), you answer the questions, can the person understand, retain and weigh the relevant information and can they communicate their decision. You are asked to explain why the person cannot do these in relation to the decision being made. Again, it is not a life history, it is a succinct explanation of what has led you to conclude that the person cannot understand, retain or weigh the information. If they can, no explanation is required and the box remains empty. Next, you are asked to explain what support you gave to the person to help them understand this information.  You will be familiar with the principles set out in section 1 of the Mental Capacity Act 2005 and this section of the COP3 form deals with (2) below:

  1. A person must be assumed to have capacity unless it is established that he lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

After describing the steps taken, you are required to describe any steps that could be tried, to help the person understand the information, but haven't yet.  This isn't to trip you up, there may be legitimate reasons that a particular step hasn't been taken; it might require more time if it relates to educating the person. Next, you are asked to explain why the person's inability to make the decision is BECAUSE OF the cognitive impairment.  It can't be related to, or connected to, it has to be because of.  You will notice that this is a reversal of what was colloquially known as the 2-stage test.  The correct way, (which has now been rectified in the updated COP3 form) to deal with the questions are:

Finally, you are asked if you have any general comments or any other recommendations for future care, or whether the person themselves has expressed any wishes in relation to the decision.  This is an important section because the Court of Protection can make an order even if that order is not specified in the application form. Sometimes (more likely in the case of personal welfare decisions), the court will make a one-off decision rather than appointing a deputy with on-going decision making power. When you complete the COP3 form, you can assist the court if you think that an order other than the one being sought by the applicant would be in the best interests of the person to whom the application relates.  If you do complete this section, it is important to explain why you have recommended a different order. As a Social Worker,  or an experienced mental capacity assessor,  you already have the skills to complete a COP3 report. As with any assessment, it is vital you show your workings out, what has led you to the opinion you have reached.