Social workers’ evidence is set to carry greater weight with the Court of Protection due to forthcoming changes in its guidance on mental capacity assessments.
About the Court of Protection
The Court of Protection, in its current form, was established by the Mental Capacity Act 2005.
It has the power to:
It also hears appeals against authorisations to deprive people of their liberty in hospitals or care homes, where they apparently lack capacity to consent to care or treatment.
Source: Mental Capacity Act 2005 code of practice, chapter 8
Currently, it specifies that capacity assessments of adults, submitted as part of applications to the court, should be carried out by “a registered medical practitioner, psychologist or psychiatrist”, or in some circumstances, registered therapists such as speech and language or occupational therapists. Social workers are not listed though some judges do accept social work evidence on a discretionary basis.
However, the Court is now reviewing its COP3 form, which specifies which professionals may submit capacity assessments for court applications, to make it clear that social work assessments will be accepted, amid concerns that judges have a blanket preference for evidence from medical professionals.
What the Mental Capacity Act code of practice says
This is despite many social workers carrying out capacity assessments as part of their day-to-day practice, and the Mental Capacity Act 2005 code of practice listing social workers as one of a number of professional groups who may carry out formal assessments of capacity in respect of complex cases, such as those submitted to the Court of Protection. More generally, the code says capacity should be assessed by the person caring for the person at the time the decision needs to be made.
A spokesperson for HM Courts and Tribunals Service (HMCTS) said: “The Court of Protection’s procedures and forms are governed by its own rules which are separate to the Mental Capacity Act code of practice,” said an HMCTS spokesperson. “The COP3 form must be completed by someone who is professionally qualified and able to give expert evidence in this form.
“This could include a medical practitioner, a registered social worker or nurse with the relevant experience. The decision whether to accept the evidence is at the discretion of the judge. The Court of Protection is reviewing the form to include guidance for social care professionals completing the form.”
College of Social Work gives backing to review
The decision to review the form was welcomed by The College of Social Work (TCSW). “The MCA code of practice says [the capacity assessment should be carried out] by the most appropriate person so the fact that the courts aren’t reflecting the code of practice is a bit of a concern,” said Daisy Bogg, TCSW’s practice development adviser. “It’s likely to be an oversight. Should it be addressed? Of course it should. In a lot of cases, social workers are going to be the most appropriate person. “
She said the credibility of social work evidence in the Court of Protection depended on the judge hearing the case and the strength of links between the local judiciary and social work leaders.
“In some areas you have some very good circuit judges who link up with some of the social work structures,” she said. “I think what medics have is that credibility by virtue of their title, and where there are not those links [with judges] the medics will always win out in terms of their view coming higher than social work.
She also raised wider issues about the impact of social work evidence in court, compared with evidence submitted by medical practitioners.
“Even when you have someone arguing a very strong case the evidence in social work and social care is not based on that robust clinical evidence base based on randomised controlled trials. It’s more qualitative. Social work has got a long way to go in articulating its evidence base. In medicine and, to some extent, nursing, you can say this is what we did in our clinical trials.”