In July 2023, a new CoP3 capacity assessment form was released by the Court. It's available on the government's website.
- multiple areas/domains of capacity can be assessed/recorded on the form but these must be clearly set out (e.g. numbering each different domain);
- the assessor will now need to detail the practical steps that could be undertaken to support P to make their own decision;
- the assessor will now need to set out explicitly on the form what the “relevant information” is considered to be for each domain of capacity being assessed;
- the assessor will now need to set out what support was given to P to help them understand the “relevant information” and if there are any other steps that could practicably be taken to support the person to have capacity that haven’t yet been tried;
- the new form requires the assessor to provide the evidence of P being unable to understand, retain and/or use and weigh the “relevant information” and/or communicate their decision before confirming whether this is because P has an impairment of or disturbance in the functioning of their mind or brain;
- the assessor will now need to explain why the impairment/disturbance in P’s mind or brain means they cannot make the decision(s);
- the assessor will now need to confirm if the assessment was carried out in person or remotely; and
- the assessor will now need to set out whether they think that P may regain capacity in any of the domains in the future (with their reasons).
The changes to the CoP3 form bring it in line with the expectations of capacity assessments that have been set out by the judges in case law since the form was last updated.
Where one CoP3 form is being used to assess/record multiple domains of capacity, in our view, it is very likely that the assessor will need to use a/multiple “continuation sheet(s)” – as the space on the form itself to complete a number of the sections of the form is quite limited.
Practitioners should now use the new version of the CoP3 form going forwards. Any assessments of capacity that are currently in the process of being finalised should be transferred over to the new CoP3 form.
If you have any questions, please do not hesitate to contact Hannah Taylor.