New OPG Guidance – Court of Protection visitors and the release of their reports

Comment

The role of a Court of Protection visitor is to visit clients, deputies, attorneys and associated agencies (eg Social Services, care home managers) and provide written reports to the OPG or Court within a designated timescale and in accordance with agreed targets and standards.

This useful guidance published by the Office of the Public Guardian outlines the role of Court of Protection visitors and how to request the release of their reports:

1. By the Court of Protection;
2. By the Public Guardian; and
3. Under the Data Protection Act.

This will be interesting reading because it may not be widely known that everyone involved in an investigation and interviewed can see a report.  This has the potential to cause some ructions!

Guidance

Reports by Court of Protection visitors address the key issues at stake in Court of Protection proceedings and in investigations by the Public Guardian into the suitability of individual attorneys and deputies, including where allegations of financial mismanagement or abuse have been made.  They contain highly personal and often contentious information about a client’s circumstances.

There are two different types of Court of Protection visitors, defined by law under s 61 Mental Capacity Act 2005:

1. Special visitors, who are medical practitioners with special knowledge of mental incapacity; and
2. General visitors, who do not need to be medically qualified but have experience of mental incapacity.

Court of Protection visitor reports can be commissioned by the Court of Protection under s49(2) Mental Capacity Act or by the Public Guardian under s58 (1) (d) Mental Capacity Act 2005.

The purpose of the reports is to help the Court of Protection with decision making;  and to assist the Office of the Public Guardian in their role as supervisor of deputies and investigator of concerns about the actions of attorneys.  Court of Protection visitors can visit anyone they are directed to by the court.  They have access to health records, care records and social services records and may interview the person lacking mental capacity in private.  In some circumstances, they may visit an attorney before the registration of a lasting or enduring power of attorney.

Any reports prepared prior to 1 October 2007 may only be released with permission of the Court of Protection.

The guidance is available here.

Practice Points

1. Release of reports by the Court of Protection:
   These reports are automatically released to people directly involved in the case being heard by the Court of Protection under Rule 117 of the Court of Protection Rules 2007, including the applicant, the respondent and other parties, unless the court orders otherwise.Under rule 17 of the COP rules, third parties can apply for a copy of reports.  An application is made on form COP9 and there is no fee.
2. Release of reports by the Office of the Public Guardian:
   These reports are released to the people the visitor has interviewed while preparing the report under the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 and the interviewees may be invited to comment on the report (under Regulation 44).The reports may also be released:

   i) by the Court of Protection (to the parties above) if the Public Guardian includes them in an application to the Court of Protection;
   ii) to another Court of Protection visitor prior to a subsequent visit;
   iii) to the Police or a Local Authority during an investigation;
   iv) to a Local Authority for the welfare and safeguarding of the client or if this will help the supervision of, or investigations into the actions of a deputy or attorney.Other requests for reports not covered by the above provisions can be made to OPGInformationAssurance@publicguardian.gsi.gov.uk.  The report will not be released if it goes against a third party’s data protection rights, contains confidential information or the release could be harmful to someone named in the report.Any individual making an allegation of abuse to the Court of Protection visitor will have their identity redacted in the report.  The Public Guardian may ask the court to protect the identities of interviewees if they feel that their physical or psychological safety may be threatened.Professional deputies may have an assurance visit commissioned by the Public Guardian.  A number of their clients will be visited and they will be sent a letter outlining the findings of the visit.  Third parties can request copies of these reports at OPGInformationAssurance@publicguardian.gsi.gov.uk.

3. Release of reports under the Data Protection Act:
   Personal information in visit reports is covered by s7 Data Protection Act 1998.  Subject to the payment of a fee, the reports may be released to: i) The client; or ii) The deputy or attorney of the client, acting under a registered enduring power of attorney, lasting power of attorney or Court of Protection deputyship.Information which is not about the subject of the request and the names of some third parties may be redacted.

Further reading

OPG Guidance- Court of Protection visitors and the release of their reports