The Court has had to adjust its practices in order to ensure that help and solutions are found for those lacking capacity with minimal delay. This includes moving to online hearings and accepting electronic applications in order to speed up the Court processes where practical.
In this uncertain world, finding a loved one’s condition has declined and they are no longer able to make decisions for themselves without support will undoubtedly be a stressful situation. This may arise from a degenerative health condition, decline in mental health or an unforeseen injury.
In this situation, should a friend or family member be felt to lack capacity to make specific decisions either in relation to their property and financial affairs, or their health and welfare, they will need someone to help make those decisions for them. They may have taken steps earlier in life to make their wishes known for such an event and put in place a Lasting Power of Attorney. Should this future planning not have taken place yet, the alternative will require an application to the Court of Protection for the appointment of a Deputy.
The first step towards making this application is getting a medical opinion on the person’s capacity in the form of a COP3 capacity assessment. Capacity is described in the Mental Capacity Act (MCA) 2005 as being decision-specific. The MCA gives a clear definition of lacking capacity in s2(1):
“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision himself in relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain”
There is therefore a two-stage test to be applied when considering if someone lacks capacity to make a decision:
a. Is the person suffering from an impairment or disturbance in the functioning of the brain or mind;
b. Does that impairment mean they are unable to retain and weigh up information in order to make a specific decision?
The following is a list of practitioners who are authorised to complete a COP3 capacity assessment after they have examined and assessed the capacity of the person:
- Medical practitioner for example GP
- Approved mental health professional
- Occupational Therapist
The Court will accept an assessment by another therapist with the relevant MCA training, if they have a better knowledge and understanding of the person which will make the assessment informed. It is therefore worth thinking about who sees and supports the person on a regular basis and whether they might be the best person to help with an assessment.
A formal capacity assessment is usually ideally done with an in-person assessment by either a GP, social worker or independent capacity assessor depending on an individual’s circumstances.
However, given the government’s recent introduction of lockdown part 3.0, in person face to face assessments with independent third parties are likely to be prohibited, impractical and potentially unsafe.
So, what do you do? Below are some practical tips for accessing a capacity assessment during the current pandemic:
- If the person is in a hospital setting, ask the treating consultant to complete the COP3.
- If the person is in a care home setting, ask the home if there is a GP or medical practitioner with oversight of all residents who can carry out the assessment.
- Making use of technology is becoming common practice for capacity assessments and is accepted by the Court following the judgement in BP v Surrey  EWCOP17. If there is access to a tablet, laptop or even mobile phone with a camera this can be used for a video assessment using Skype, Facetime or Zoom.
- If the person is in a care home and does not have their own technology, the home may have a shared option that could be accessed or potentially a personal phone with video calling facilities.
- If a face to face video assessment is not appropriate, a telephone consultation may be appropriate if the person can be supported to partake safely and comfortably.
If you are acting as a Deputy or attorney for a vulnerable individual during the pandemic, the government have published additional guidance to help navigate some of the difficulties you may be currently facing: Being a deputy or attorney during the coronavirus outbreak - GOV.UK (www.gov.uk)
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2023