Providing written evidence to the Court of Protection: key advice

This article comprises of tips taken from a new guide on Community Care Inform Adults on giving written and oral evidence to the Court of Protection. The guide is written by Sally Gillies, registered social worker and adult social care project manager at Signis Group. The full guide includes information on making an application to court, getting ready to give oral evidence and preparing for the court experience. Subscribers can read the guide on Inform Adults.

Introduction

As the Mental Capacity Act 2005 continues to embed itself into everyday practice more and more adults’ social workers find themselves being called to provide written and oral evidence in the Court of Protection.

When compared to their peers working in children’s services, attending a court of law in this capacity is still unfamiliar territory for many adult practitioners, and can cause significant anxiety. Much of this anxiety can be alleviated when practitioners understand what to expect.

Providing written evidence

It is likely that you will be asked to provide written evidence when:

• your organisation is making the application; and
• you are the practitioner most involved in the case.

The nature of the evidence that you will need to provide will be decided by the legal representative at your organisation with responsibility for co-ordinating the application, and this should be made clear to you.

This could be:

• evidence for the application (for example, COP1, COP1A or COP1B);
• a witness statement (COP24);
• a mental capacity assessment (COP3);
• exhibits to support the application (for example, a copy of an assessment report).

If your involvement in the case is limited you may not be required to submit evidence, although information you have provided that is relevant to the application is likely to be referenced in the submissions of others (for example, emails, written reports).

The witness statement (COP24)

A witness statement is one of the primary pieces of evidence that can be submitted to the court, as it is the solemn testimony of an individual directly involved in the case.

When you are asked to prepare a witness statement, this is likely to be:

• To support the application; and
• When a full hearing is to take place, at various points throughout proceedings.

The statement should be:

• recorded electronically using COP24;
• clear and concise;
• well-structured (the use of headings are appropriate in most cases);
• relevant to the circumstances or questions to be answered;
• evidence based;
• signed and dated; and
• submitted in a timely way.

For ease of reference you are required to number each heading that you use, and also each paragraph within the heading.

Whenever you make a statement it must also be clear whether this is something that:

• you know to be true;
• you believe to be true; or
• is information that has been provided to you upon which you have no view.

If you believe something to be factual it is important that you state why you believe this to be so. Every piece of supplementary evidence that you refer to in the witness statement must be submitted and should be given an exhibit number (for example, Exhibit A, Exhibit B, Exhibit C). Whenever you refer to an exhibit you should also refer to the name of the document, and vice versa.

Top tips for completing a witness statement

1. Take a considered approach
2. Don’t rush or panic.
3. Witness statements can be as long or short as they need to be.
4. Avoid complicated language (people need to understand what you are saying as quickly as possible).
5. Explain your rationale.
6. Seek legal support as often as you need it.
7. Seek support from your line manager.
8. Understand what you have written as you may be questioned on it.
9. Use as many headings as you need to structure your statement.
10. If, as you are preparing your statement you identify further relevant evidence, submit it to legal support for consideration.