News and guidance: How to use the new COPDOL form 10

28 November 2016

Adapted from guidance by 39 Essex Chambers.

This refers to the new, more person-centred fact finding form to be used for applications to the Court of Protection for:

  • authorisation to deprive people of their liberty
  • to give necessary care or treatment
  • in settings such as supported living
  • where DoLS cannot be used.

This form is to be used when there are no triggers (such as clear objection by the person to the placement, or evidence that the person and their relatives were not properly consulted) that would make it essential to have a full hearing of the case.

Hence the new form must give sufficient information for a decision to be made on the immensely important issues around:

  • a person’s rights to liberty
  • whether those rights should be curtailed in the person’s best interests.

The level of detail required makes it more than ever essential that social workers carry out a full, detailed assessment. The local authority (or CCG) legal department will need this level of detail to be able to complete the form. Also, to carry out and record this level of exploration is best practice, and a clear sign of the amount of care taken within your local authority and your team to achieve the best possible outcome for a person with care and support needs.

You will need to be clear about the nature of the person’s care arrangements (together with a copy of their care and/or support plan) and why it is said that they do or may amount to a deprivation of liberty.

The form asks the applicant to provide:

  • The arrangements for review of the care or support plan.
  • A description of the level of supervision (1:1 etc), together with periods of the day when supervision is provided.
  • Use or possible use of restraint and/or sedation (remember to refer correctly to the Mental Capacity Act (MCA) 2005 definition of restraint, see Code of Practice 6.40 and following).
  • Use of assistive technology, such as sensor mats or door sensors, and their purpose (eg, to alert a relative to come and escort them back home).
  • What would happen if P tried to leave.

Very importantly, the person making the application must also set out what options have been considered and why, if they appear less restrictive than the current plan, they have not been pursued.

They must then explain the advantages of the preferred care package, to show why it has been chosen as appropriate.

This explanation must include any recent changes to the care/support plan or any planned changes, with reasons. The local authority – so in practice the social worker – will have to liaise with the care provider to ensure they know the actual practical details of day to day care.

The public body making the application will therefore have to make sure that it has obtained (and where necessary worked with the care provider to improve) the care provider’s care plan before making the application so as to ensure that it addresses the matters set out above. Given that a more restrictive care regime will need to be sanctioned by the court, applicants may want to consider incorporating contingency arrangements into the care plan so as to minimise the need for judicial micro-management.

The importance of the care plan accurately recording the use of restraint, especially physical restraint, was emphasised by Baker J in Re AJ [2015] EWCOP 5. Linked to this, because the judge’s main concern is as to what is actually happening on the ground, the care plan that will usually need to be supplied with the application will be the care provider’s care plan, because that will (or should) be detailing what is taking place on a day to day basis.

It is clearly good practice, if any sedation or restraint is being used or may be used, for full details to be given, with reasons for their use, and why they are the least restrictive measures to deal with the relevant issues. For medicines used to alter mood or sedate, give name of drug, dosage, and whether it will be administered covertly (see Case 6 in these updates for guidance on covert medication). Please avoid using ‘support’ as a synonym for restraint (as in, ‘she will be supported by two staff holding her arms to return to the house if she tries to leave’).

In Re NRA, Charles J held that the actual care notes can be very informative and their production may avoid the need for a summary or a lengthy summary.

The main function of the care and support plan drawn up by the local authority (or NHS body) is to set out how the person’s assessed needs will be met, and it will often not include the necessary level of detail. This makes it imperative that good MCA-compliant decision-making is at the heart of all assessments that might restrain someone or deprive them of their liberty.

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