On 29 August 2023 we published an article written in collaboration with the now former King’s Counsel David Heaton about the legacy which is Loughlin v Singh with particular reference to the very last paragraph of the annex to the judgment which provides:
“The issue of capacity is of very great importance and all involved must ensure the Court of Protection has all the material which, on proper reflection, is necessary for a just and accurate decision.”
In it, David highlighted the defendant should establish whether it is intended to apply to the Court of Protection for the appointment of a Deputy and, if so, whether the claimant will disclose any expert evidence supporting such an application as well as include any expert opinion disclosed by the defendant on the issue of capacity.
Recent changes made to the COP3 mean heeding this advice has now become even more important in future cases in which capacity is in dispute.
The COP3 is a document completed by a competent assessor which is used to record their view whether a person has the mental capacity to make a specific decision and forms the basis of an application to the Court of Protection to appoint a Deputy.
While the previous version of the form specifically posed the question:
“Are you aware of anyone who hold a different view regarding the capacity of the person to whom the application relates?
If Yes, please give details:”
This question is not included in the new version.
In our view, the absence of a specific prompt to record the opposing views of the defendant’s medical experts is potentially problematic from the perspective of ensuring the Court of Protection is in receipt of all of the relevant material needed to make an informed decision.
There is however a generic “any other information” section at 6.13 of the new form where we would say such evidence should be recorded as a matter of good practice.
Going forward, we would therefore recommend the defendant seek specific confirmation the practitioner tasked with completing the new version of the COP3 will ensure all evidence in relation to capacity which has been sent to them is referred to.