New COP3 Form

An updated version of form COP3 has been published on the Government’s website.

What is a COP3 form?

A COP3 form is a form used to record whether a person has the mental capacity to make a specific decision and accompanies other forms when someone makes an application to the Court of Protection. The COP3 reference is merely the form number. A COP3 mental capacity report can be used for a variety of reasons from a local authority applying for a Deprivation of Liberty Order for a 16 year old to a professional deputy making an application to become a person’s deputy. Any decision that requires a mental capacity determination in the Court of Protection will require a COP3 form completed by a competent assessor.

How has the COP3 form been updated?

Perhaps the most striking change is the order that a mental capacity assessment is completed. Historical (and following the order set out in the dated Mental Capacity Act Code of Practice), the order that a mental capacity assessment is undertaken is:

1. The person to whom the application relates has the following impairment of, or disturbance in the functioning of, the mind or brain.
2. As a result, the person is unable to make a decision for themselves in relation to the following matter(s) in question.

However the order of the questions has now been changed to reflect good practice:

1. Is the person able to make the decision(s) that have been identified?
2. If the person cannot make the decision, is this because they have an impairment of, or disturbance in the functioning of, the mind or brain?

Another change in the new form is the phrasing of the questions.  The old form invited the assessor to document why the person couldn’t make the decision in question; the new form asks whether the person can make the decision in question.

Section 3 of the new COP3 form has been changed and now invites the person making the application to provide details about any practicable steps they know of, which may help the person make their own decision(s).  This reflects section 1(2) of the Mental Capacity Act 2005, 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.

Part B of the COP3 form is not completed by the person making the application.  It must be completed by an appropriate assessor including medical practitioners and social care professionals.  The previous version of the COP3 form listed different health and social care professionals who were appropriate to complete the form.  Now, the emphasis is on the right person, rather than being of a particular profession.

An important addition to the new COP3 form is in section 5.  It asks the assessor to identify the relevant information relating to the specific decision being assessed.  This is important for 2 reasons.  It ensures that the bar isn’t set too high for the person being assessed, it also provides a layer of accountability.  If someone disagrees with the assessment of capacity, the information used to make the determination is listed and can be challenged if necessary.