Tying in neatly with the case of SY discussed above, a new COP3 has been published, available here. The most important changes are:

  1. rewording the form to make clear that the range of practitioners appropriate to complete assessments of capacity for the purposes of proceedings before the COP is not limited to medical practitioners (as was sometimes – erroneously – assumed to  be the case). In particular, the new form makes clear that social workers are recognised as appropriate professionals for  these purposes;
  2. rewording the form to make clear (section 5.3) that the important information that the Court requires in terms of assessing the quality of the assessment includes not just the professional qualifications of  the individual concerned but their ‘practical experience with making assessments of capacity in accordance with the Mental Capacity Act 2005 and associated Code of Practice’;
  3. Removal of the reference to charging at the front of the form, as the majority of professionals do not charge to carry out assessments of capacity;
  4. adding (in section 7.1) a requirement that, where there is a specific diagnosis giving rise to the impairment of or disturbance in the mind or brain, this is expressly set out;
  5. removing an anomaly in section 7.2 that appeared to treat difficulty in communication differently as a ground for incapacity, by making it clear that it can stand alongside the other three limbs of s.3 MCA 2005 as an additional/alternative basis upon which the functional test is satisfied;

We welcome these changes (not least because they reflect, in part, the input of one of the editors, Alex!). We would, however, emphasise that they should not be seen as limiting the ability of the Court to receive evidence from any appropriate person as to capacity (including not solely professionals but also family members and P themselves: see, above all, CC v KK [2012] EWHC 2136 (COP)).