Court of Protection adds weight to social worker evidence in mental capacity assessments

The Court of Protection has made it clear that social workers are among those who can submit evidence of assessments of people’s mental capacity under the Mental Capacity Act 2005.

The change is reflected in the revised version of the COP3 form, which states, for the first time, that the court will accept evidence of social workers.

The previous version of the form stated that the court would only accept capacity assessments as evidence when carried out by listed medical practitioners, psychologists and certain therapists, such as occupational therapists. In practice, judges allowed social workers to submit assessments but this was discretionary.

Robert Nisbet, the lead on the Deprivation of Liberty Safeguards at the British Association of Social Workers, welcomed the change in the form.

“I’m pleased it has been extended to social workers,” he said. “Traditionally, it has always been a medic that fills the form in, but the good thing about it is that it has to be the most competent individual in terms of knowledge of the person they are assessing.

“Social workers should be good at researching the history of a person so they can have a timeline in relation to the the process that led to them no longer having that capacity.”

The question now, he added, is whether social services have the capacity to carry out these assessments to the standard required.

“Services are run ragged and this is a very, very important form. Do services have the resource available to undertake that and, if they do, are they ensuring their staff are competent in undertaking those assessments?”

“You can redesign the form but you also need services to have resource and competency to undertake that in a professional way.”