Page 3 - COP 3 Guidance for Completing Form - RJN _Ver 2.1_ 01 Feb 2018

Guidance on Capacity Assessment CoP 3 Form ETC Advice Ltd
success in communication with the resident prior to their entering the care home.
Consideration of these issues when planning for an assessment of a person’s capacity as to decisions about their care, finances etc, should achieve a situation where are acting lawfully and in a way that is likely to result in an approach that most effectively respects the rights of those who lack capacity.
CONCLUSION
Finally, as in one case before the Court of Protection put it “do not allow the tail of welfare to wag the dog of capacity”.
A decision can only be taken either in reliance on the general defence in s.5 MCA 2005 or by the court if and when it is proved on the balance of probabilities that:
1. ‘P’ is in fact unable to take the decision in question.
2. That this inability is because of an impairment or disturbance in the functioning of the mind or brain.
NOTE
The above guidance recognises & references information & advice offered in an article by 39 Essex Street - Chambers ‘A brief guide to carrying out capacity assessments’.
RJN/MCF/31/01/2018/GUIDANCE/COP 3 Page 3 of 3