The Application Process

1. The Application Form

In all cases

As the practitioner most familiar with the case you may be asked to complete the application form. You should be provided with appropriate legal support to carry out this task.

The Court of Protection Rules (2017) set out the minimum requirements for any application form, which are as follows;

  1. The name of the Applicant (which is normally the Director or equivalent of the organisation);
  2. P (the name of the person who lacks, or may lack capacity);
  3. The name of any Respondents;
  4. The name of any person that the applicant intends to notify of the proceedings;
  5. The matter that the applicant wants the Court to decide; and
  6. The order that the applicant is seeking (including any interim orders).
Need to Know
A Respondent is a person who is to be included as a full party to the proceedings, but is not the Applicant or the person about whom the application relates.

Where they exist the following documents must all be photocopied and submitted alongside the application form;

  1. Where relevant, a copy of the permission to apply document granted by the Court;
  2. An assessment of capacity form (COP3);
  3. Any other COP forms that need to be submitted;
  4. Any other documents referred to in the application form; and
  5. Any other evidence upon which the applicant intends to rely (including any witness statements written by you).

General applications

Any application that does not relate to a Deprivation of Liberty should be made using form COP1.

Guidance about filling in the application form can be found on the form itself.

Deprivation of Liberty applications

All applications relating to deprivations of liberty must be made using form COPDOL11 with Annexes A, B and C all completed. 

In addition to all of the information required for general applications, Annex A must also set out;

  1. Any factors that need particular scrutiny by the judge;
  2. Any factors that suggest the arrangements in relation to which authorisation is sought may not in fact be in the best interests of the person the application is about; and
  3. Any other factors tending to indicate the order should not be made.
The application form must also include a statement that confirms the applicant is satisfied that the person the application is about has been supported and assisted to express their views, wishes and feelings in relation to the application and the arrangements proposed in it, and encouraged to take part in the proceedings to the extent that they wish to be.

2. The Mental Capacity Assessment

Preparing the mental capacity assessment

The mental capacity assessment is a crucial piece of evidence to be submitted.

Before submitting the assessment report you should review it to ensure that it contains all of the following information;

  1. The evidence that has been used to confirm the presence of an impairment or disturbance of the mind or brain;
  2. The decision to be made;
  3. The relevant information that has been provided to the person;
  4. The practicable steps that have been taken to support the person to make their own decision;
  5. The outcome of each element of the functional test of capacity;
  6. The reason that the person has been deemed to have, or to lack capacity to make the decision for themselves; and
  7. Where the person has been deemed to lack capacity, the consideration that has been given to delaying the decision.

The report must also be;

  1. Legible (when completed by hand);
  2. Grammatically correct;
  3. Use appropriate terminology; and
  4. Have been completed no longer than 6 weeks before the Court application is made.

During the Court process the assessment report will be;

  1. Reviewed by the Court;
  2. Reviewed by any legal representative of person who lacks capacity (or may lack capacity); and
  3. Provided to all other parties to the proceedings, which could include family members.

Questions are likely to be asked of you if either of the following is not clear from the mental capacity assessment report;

  1. How you applied the statutory principles of the Act; and
  2. What the rationale for your decision is.
Need to Know
On occasion, and subject to legal advice or instruction of the Court an independent mental capacity assessment may need to be carried out. The person carrying out the assessment is responsible for making sure that it meets all of the requirements of the Mental Capacity Act.

Submitting the mental capacity assessment

The mental capacity assessment should be submitted to the Court using the COP3 form.

Where a detailed recording of an assessment exists in a different format should be summarised onto the COP3 then submitted as supplementary evidence.

3. Preparing other Evidence

Preparing the Best Interests decision record

Where a Best Interests decision has already been made, the record of the decision is a crucial piece of evidence to be submitted.

Before submitting the record of Best Interests decision making you should review it to ensure it contains all of the following information;

  1. How the decision was reached;
  2. What the reasons for reaching the decision were;
  3. Who was consulted to help work out Best Interests; and
  4. What particular factors were taken into account.

During the Court process the Best Interests report will be;

  1. Reviewed by the Court;
  2. Reviewed by any legal representative of person who lacks capacity (or may lack capacity); and
  3. Provided to all other parties to the proceedings, which could include family members.

In particular evidence of your rational for the following will be considered;

  1. Involving (or not involving) the person who lacks capacity;
  2. Consulting (or not consulting) others;
  3. Giving weight to (or not giving weight to) the past and present wishes and feelings of the person;
  4. Giving weight to (or not giving weight to) the views of those consulted;
  5. The way in which you have considered the impact of any risks and benefits;
  6. How you decided which circumstances were relevant and which were not.

Questions are likely to be asked of you if either of the following is not clear from the Best Interests report;

  1. How you applied the Best Interests principle; and
  2. What the rationale for your decision is.

Submitting the Best Interests decision record

The Best Interests decision record should be submitted as an Exhibit (see below).

Other Relevant Evidence

It is important that you submit all evidence that you;

  1. Have referred to in the application;
  2. Have referred to in a witness statement;
  3. Feel may be relevant to the decision; or
  4. May rely on at any point in the proceedings.

Examples of evidence include, but are in no way limited to;

  1. A Mental Capacity assessment written in a different format;
  2. A Best Interests report;
  3. A needs assessment;
  4. A Care and Support Plan;
  5. A Health Plan;
  6. A communication assessment;
  7. Copies of electronic file records;
  8. Letters and emails from the person, or others that sets out their wishes and feelings;
  9. Witness statements of other professionals.

Exhibits

Court evidence can quickly grow into a significant amount of paperwork. Each piece of evidence that is not a COP form should be;

  1. Labelled as an Exhibit (for example Exhibit A, Exhibit B, Exhibit C); and
  2. Referred to by its exhibit wherever it is referenced.
This will help the Court and others to locate the evidence quickly

4. The Witness Statement

As the practitioner most familiar with the case your testimony is one of the primary pieces of evidence that the Applicant can submit.

It is likely that you will be asked to prepare a witness statement;

  1. To support the application; and
  2. At various points throughout proceedings.

The format of a witness statement

All witness statements should be submitted using form COP24.

The statement should be;

  1. Recorded electronically;
  2. Clear and concise;
  3. Well structured (the use of headings are appropriate in most cases)
  4. Relevant to the circumstances or questions to be answered;
  5. Evidence based;
  6. Signed and dated; and
  7. Submitted in a timely way.

Setting out paragraphs

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

Knowledge versus belief

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

  1. You know to be true;
  2. You believe to be true; or
  3. 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.

Exhibits

Every piece of evidence submitted 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.

Example: I refer to the email dated 06.06.2017, marked Exhibit b……

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-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.

Witness statement case example

Click here to access an example of a COP24 witness statement.

5. The Decision of the Court

General applications

Based on the application and the evidence submitted the Court will either;

  1. Issue the application (to begin proceedings); or
  2. Decline to issue the application.

You should be notified of this outcome by legal support as soon as they receive the correspondence from the Court.

If an application is issued and an interim order has been requested the Court will either;

  1. Grant the interim order; or
  2. Decline to grant the interim order.

If an urgent order was requested the Court;

  1. May grant an interim order; and
  2. Will prioritise the ground rules hearing (initial hearing).

Deprivation of Liberty applications

As soon as practicable after receiving the application the court officers will decide whether the application is suitable for streamlining, or if an oral hearing is required.

Streamlined application

If the application is suitable for streamlining the judge will consider it on paper and make one of the following determinations;

  1. To grant the deprivation of liberty
  2. To refuse the deprivation of liberty; or
  3. To direct an oral hearing to consider the matter further. 

You should be notified of this outcome by legal support as soon as they receive the correspondence from the Court.

If the judge makes a determination to either grant or refuse an authorisation the order made must be provided to the person the application was about and all other people consulted.

Other applications

If the application is not suitable for streamlining, or if the judge has determined that an oral hearing is needed the court will issue the application (begin proceedings).

If an urgent order was requested the Court;

  1. May grant an interim order; and
  2. Will prioritise the ground rules hearing (initial hearing).

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