Mental Capacity and Deprivation of Liberty

Once a potential DoL has been identified, an application to the Court of Protection must be submitted via Legal Services, with several forms requiring completion.

You will need to:

• Liaise with legal Services regarding the facts of the case;
• Make reference to the process map regarding steps to take;
• Assess the Capacity of the young person in question;
• Has there been a best interest decision made in relation to the care regime?
• Obtain agreement from relevant manager;
• Draft necessary paperwork on the COP forms including witness statement and Capacity form completed by health professional;
• Consider who will act as advocate for the child - is there a suitable family member?
• You will also need a care plan.

The Court has recently required the appointment of a representative for the person who is the subject of the application in accordance with Rule 3A(2)(c) of the Court of Protection Rules 2007 as amended. You must therefore identify a suitable person to act as a representative for the person concerned which may be a family member of close friend. The representative once identified will be required to complete a COP24 Witness Statement to send to the Court which must include details as to their suitability to act as the person's representative, confirmation that the representative has had sight of the application and supporting evidence and whether or not they are happy with the proposed arrangements for the young person who is the subject of the application. The representative must also state whether they feel that an oral hearing is necessary and the reasons why.

The COP 10 completed by the social worker details who must be consulted, in addition to the person whom the application is about, including:

• Any deputy appointed for the person by the court;
• Any donee of a lasting power of attorney granted by the person.

And at least three people in the following categories:

• Anyone named by the person the application is about as someone to be consulted on the matters raised by the application; and
• Anyone engaged in caring for the person or interested in his or her welfare.

It details in paragraph 40, which information must be given to the above during the consultation, both verbally or in writing.

See Court of Protection Forms online.

Form COP10

Form COP10 must be completed including annexes A, B and C. This form must be completed by the social worker.

Form COP 3

At the same time, a medical practitioner must be identified who will assess both the mental capacity and the mental health of the individual possibly for an agreed fee. Part A (including Section 4) of the form COP 3: Assessment of Capacity must be completed by the Social Care Assessor and forwarded to the doctor to complete Part B and sign, date and return it.

Please note: that the Case no. blank boxes at the top of all the COP forms should contain the reference number given by the COP (if this is not known at the time of submitting the initial forms, it can be added later).

Form COP 24 - to be completed by the social worker

Other Documents

The current care plan must accompany the COP10, COP3 and COP 24 ensuring that the hard copy has a typed date. The Care and Support Plan must have been completed less than 12 months prior to the application being made.

Additionally the relevant Best Interests Checklist and Decision Record must be attached.

To conclude - as detailed above, the following forms must then be emailed to Legal Services with the hard copies signed by the SCA (in the relevant sections) posted to them:

• COP10 Application to authorise a deprivation of liberty;
• COP3 Assessment of Capacity;
• COP24 - statement;
• Best Interests Checklist and Decision Record;
• Support Plan(Care Plan);
• Any initial capacity assessment completed.

There are some sections in Form COPDoL10 which Legal Services are required to sign. You will be required to supply Legal Services with the relevant budget code for the Court fee of £400 (If a hearing is later needed, the required fee will be £500).

Once the application has been received by the COP there may be a wait of approximately 2 weeks before an order is made or the forms returned if further information is required by the Court.

The Form COP 24 Witness Statement below must be completed and signed by the representative (by a relative or paid representative) and submitted by them directly to the Court.

If everyone is in agreement it is possible for the court to make the order on the facts set out in the papers without the need for a hearing. It is important therefore when completing the paperwork you ensure that the views of all relevant parties are accurately recorded.