SCOPE

This should be followed when a person who lacks the mental capacity needs a decision to be made on their behalf in the following circumstances:

  • They have substantial savings or property to be administered;
  • They need major healthcare treatment;
  • There is disagreement about where the person’s best interest lies which cannot be resolved by following the Best Interest Decision Making Procedure.

It should also be followed if there are reasonable grounds to believe that an existing deputy, or someone holding a relevant power of Attorney is not acting in the best interest of the incapacitated person.

RELATED CHAPTERS

Making an Application to the Court of Protection: Guidance

Best Interest Decision Making Procedure

This chapter was introduced in June 2014.

1. Principles

The Mental Capacity Act 2005 provides a framework for the majority of decision making in respect of someone who lacks capacity and all reasonable attempts should be made to make decisions under its provisions. Every effort must be made to build the capacity of the customer to the point at which they are able to make their own decision and significant others such as carers or Approved Mental Health Practitioner (if involved) should be consulted about how to build Capacity. Only where every effort has been made and the person still does not have capacity should this procedure be followed.

However, if it is clear that one of the conditions listed above applies, an application should be made to the Court of Protection for a ruling. If there is disagreement about where the person’s Best Interest lies, the Best Interest Decision Making Procedure should be followed, which identifies the point at which the application to the Court should be made.

If an application does need to be made, consideration must be given to whether the reason for application also warrants a referral to the Multi Agency Safeguarding Hub. See Safeguarding Adults Partnership Board Procedures.

The decision to apply should be ratified by the Team Manager or Assistant Head of Service and contact should be made with the Legal Section to progress to making the application.

The person about whom the application is being made should be kept informed at all stages of the process and their views taken fully into account.

2. Procedural Steps

Step Action By Whom
1. If someone needs major healthcare treatment or has substantial financial assets to be administered and they have been assessed as lacking the mental capacity to make the decision/s, the case should be discussed with the Team Leader or Assistant Head of Service at the earliest opportunity and a decision made regarding a referral to the Court of Protection and payment of the court fees. It should be noted that no one, including family and friends can administer the substantial financial assets of someone lacking capacity unless they hold the relevant Power of Attorney or are already a court appointed deputy. Social worker and manager
2. If agreement cannot be reached about how to proceed in the person’s Best Interest in a matter regarding personal welfare, the Best Interest Decision Making Procedure should be followed. If agreement still cannot be reached following a Best Interest Meeting and mediation, the case should be discussed with the Team Leader or Assistant Head of Service within 14 days of the Best Interest Meeting and a decision made regarding a referral to the Court of Protection and payment of the court fees. If an application does need to be made, consideration must be given to whether the reason for application also warrants a referral to the Multi Agency Safeguarding Hub (see Safeguarding Adults Partnership Board Procedures). Social worker and manager
3. If the decision is to refer to the Court of Protection, consideration must be given as to whether an urgent application should be made. If there is a clear risk that someone may imminently suffer serious loss or harm, an urgent application should be made. This must be agreed by a manager and referred to Legal Services. The customer and anyone else directly affected by the application should be informed unless there is a real risk that the customer may suffer significant harm if people are informed. Social worker,  manager and legal officer
4. If an urgent application does not need to be made, contact should be made with Legal Services who will progress the application within 10 working days. If the application is for financial deputyship alone, the Transactional Finance Officer at the Treasury must be informed. A decision will be made by them and the legal officer about who will lead on the application. Legal Services will seek information from the social worker and may require the social worker to complete part or all of the application forms. They may also require the social worker to notify interested parties of the application. The customer and anyone else directly affected by the application should be informed unless there is a real risk that the customer may suffer significant harm if people are informed. Social worker and legal officer
5. If the nature of the referral does not require an urgent application, it must be ascertained whether the Court first needs to give permission to apply. Local Authorities do not have an automatic right of access to the Court and may need to apply for permission to refer a matter to it for a ruling. Permission is not usually needed if the application is related to financial affairs but is usually needed if the application relates to personal welfare matters. The guidance notes on the Court of Protection application form COP 1 should be referred to for further details. Social worker and legal officer
6. Click here to download the relevant Court of Protection Application Forms. The nature of the ruling requested from the court dictates the forms to be completed upon application to the court. A table is appended to this procedure setting out which forms must be completed in relation to each type of application. Legal officer and social worker
7. In each application, a formal assessment of capacity must be carried out by a suitably qualified practitioner using form COP 3. This can be a social worker, psychiatrist, psychologist, nurse or occupational therapist and the assessment must adhere to the principles set out in the Mental Capacity Act 2005 and be time and decision specific. Most medical practitioners will charge for this service and so arrangements for payment should be agreed with the budget holder. Legal officer/ social worker and medical practitioner
8. All relevant forms should be completed and two copies of the COP 1 application form together with one copy of all other forms should be submitted to the court together with the application fee of £400.00. Legal officer
9. The court will notify within 14 days whether permission to apply is granted or refused. If permission is granted, the application form will be issued (formally stamped by the court) and returned together with the following forms:

COP 5: Acknowledgement of service / notification
COP 14: Proceedings about you in the Court of Protection
COP 14A: Guidance notes for completing form COP 14
COP 15: Notice that an application form has been issued
COP 15A:Guidance notes for completing form COP15
COP 20A: Certificate of notification / non-notification of the person to whom the proceedings apply
COP 21A: Guidance notes on completing form COP 20A
COP 20B: Certificate of service / non-service, notification/non-notification
COP21B: Guidance notes on how to complete form COP 20B

The court may also issue directions at this stage.

Court of Protection
10. Within 21 days of the application being issued, the customer and anyone directly affected by the application must be formally notified. Anyone named as a respondent in the application must be given a copy of the application (COP 1) and any other forms or documents sent to the court in support of the application unless there is a real risk that the customer may suffer significant harm if people are informed. Any Independent Mental Capacity Advocate or advocate involved must also be informed.

Everyone should also be given a copy of COP 5 and asked to complete it and return it. Complete COP20B to record actions taken.

Social worker and legal officer
11. COP 15 should be completed and copied as many times as is necessary and a copy given to anyone directly affected, either via first class post or in person. Each person should also be given a copy of COP 5 and asked to complete it and return it. Complete COP20B to record actions taken. Legal officer and social worker
12. The person to whom the application relates must also be notified. This must be done in person within 21 days of the application being issued. Information must be provided in a way which is most appropriate to the person’s circumstances, for example using simple language, visual aids or any other means. It must be explained:
  • Who has made the application;
  • The fact that the application raises the question of whether they lack capacity and what this means;
  • What effect the outcome of the application would have on their life;
  • Details of anyone who may be appointed to act on their behalf;
  • That they may seek independent advice and support in relation to the application.

They must also be provided with a copy of the application, any other documents sent to the Court in support of the application, COP 5 and COP14. COP 20A should be completed.

Social worker
13. COP 20A and COP 20B must then be returned to the Court within 7 days. If it has not been possible to notify everyone and serve the documents within 21 days, this must be explained to the Court on forms COP 20A and COP20B. Legal officer and social worker
14. Unless an urgent application has been submitted, in which case the Court will respond within 24 hours, the Court must then wait for 21 days to enable anyone who has been served or notified to respond to the Court. It will then consider the application and any responses received and will then either:
  • Make a decision without a hearing;
  • Give directions about the application and any next steps to be taken;
  • Fix a date, time and place for a hearing to be attended by all parties.

If a hearing is convened, there will be a charge of £500, so the budget holder must be notified.

Court of Protection
15. If the Court is able to make a decision, it will notify within 16 weeks of the initial application. Court of Protection
16 If the Court is not able to make a decision, it may give directions about what needs to happen next. These directions may include:
  • Providing additional evidence;
  • Obtaining reports from the Office of the Public Guardian, a court visitor or the Local Authority;
  • Decide whether anyone else, for example the Health Service needs to be involved in the application.
Court of Protection
17. If the Court decides to hold a hearing, it will notify all parties by sending them a COP 28 notice of hearing form. Within 21 days, and at least 14 days before the hearing, this must be discussed with the person to whom the hearing relates and they must be given a copy of form COP 14 Proceedings About You in the Court of Protection. This must be recorded on form COP 20A which must be returned to the Court within 7 days. Court of Protection/ social worker and legal officer
18. When the Court has made a decision, it will notify all parties by sending an official copy of the order made. It should be carefully checked for errors and if any are found, the Court must be notified by returning the order via Legal Services and completing form COP 9 Applications made during the course of proceedings. Legal officer and social worker
19. Within 21 days of the final order being made, the person to whom the application relates must be notified of the outcome in the most appropriate way for them to understand and by completing form COP 14 and giving it to them. Social worker
20. If any party disagrees with the decision of the Court, they may apply for the Court to reconsider. This must be done within 21 days using form COP 9. Legal officer and social worker

Click here to view Type of Application / Forms to be Completed.