The Court of Protection plays a critical role in decisions related to individuals who may lack the mental capacity to make important decisions for themselves. Central to this process are Court of Protection visitors, whose work is integral to the assessment, supervision, and investigation of such individuals, including those with deputies or attorneys appointed to act on their behalf.
In this blog, we’ll delve into the responsibilities of these visitors and the complex guidelines surrounding the release of the reports they generate.
Who are Court of Protection visitors
Court of Protection visitors are appointed to assess the circumstances of individuals involved in legal matters under the Mental Capacity Act 2005. The role of these visitors is statutory.
There are two main types of Court of Protection visitors:
• Special Visitors – These are typically medical professionals with specific knowledge of mental capacity, which refers to a person’s ability to make decisions at a particular time.
• General Visitors – These individuals may not hold medical qualifications but must have experience in mental capacity assessments.
The Office of the Public Guardian administers a panel of these visitors, who are mainly contracted to carry out these duties across England and Wales, although a small number are employed directly by the Office of the Public Guardian.
What do Court of Protection visitors do?
Court of Protection visitors carry out visits to individuals as directed by the court or the Office of the Public Guardian. These visits may involve people who have a Deputy, a registered Enduring or Lasting Power of Attorney, or even individuals who are under investigation prior to Lasting Power of Attorney registration. Their visits aim to gather essential information to ensure that the decisions made on behalf of someone lacking capacity are in their best interests.
Visitors are authorized to:
• Interview the individual in private.
• Review and copy relevant records, such as medical, social services, and care records.
• Independently report back to the Office of the Public Guardian on matters related to the person’s welfare, and Deputy or attorney activities.
In some cases, the court may request a report from a visitor to aid in making a decision.
When can a report be released?
The release of visit reports is subject to strict rules, ensuring that only relevant individuals or parties have access to the information, and only when the law allows.
Under the Court of Protection Rules 2017, reports prepared by visitors for the court are generally made available to those directly involved in the case. This includes:
• The person making the application (the applicant).
• The person the application is against or who needs to respond (the respondent).
• Other parties involved in the case, as determined by the court.
Individuals who are not involved in the case can apply for a report, but the court may only provide an edited version. Requests can be made using form COP9, and the court may release reports without charge.
In certain circumstances, the Office of the Public Guardian can release a report to those involved in the case, including:
• Individuals interviewed during the report preparation, such as relatives, carers, or legal representatives.
• Entities included in an Office of the Public Guardian court application or during investigations, like police or local authorities.
Additionally, assurance visits may result in reports that can be accessed for transparency and oversight.
The Office of the Public Guardian has the authority to share visit reports with local authority social services, health bodies, or care providers if it is necessary for the person’s welfare, or to assist in supervising a Deputy or attorney’s actions.
If there is an ongoing investigation into potential criminal activity, reports may be shared with the police to aid their inquiry.
Individuals have the right to access personal information about themselves under the Data Protection Act 2018. This includes records held by the Public Guardian, such as visit reports. However, sensitive information not related to the subject of the request or information that could harm a third party may be redacted.
When might a report not be released?
There are specific circumstances where the Office of the Public Guardian can withhold or restrict the release of a report:
-Third-Party Data Protection: If releasing the report would infringe on another person’s privacy rights.
-Confidentiality: If a third party shared sensitive information with the visitor in confidence. •
Reports may also be redacted to protect the identities of certain individuals or to remove sensitive content that could pose a risk.
Publication of visit reports
The publication of Court of Protection visit reports is generally prohibited by the Office of the Public Guardian. This includes the sharing of reports or extracts in any public forum or publication. If you are considering publishing a visit report, approval from the Office of the Public Guardian is required to ensure compliance with legal standards and privacy concerns.
Conclusion
Court of Protection visitors play a vital role in protecting the interests of vulnerable individuals by providing independent assessments and reporting to the Office of the Public Guardian and the courts. The release of these reports is tightly regulated to ensure privacy, protect individuals’ rights, and safeguard sensitive information.
If you are involved in a Court of Protection matter or are considering seeking access to such a report, it is important to understand the rules governing the release of this information, and how the Office of the Public Guardian oversees these matters.
For any further information, please contact Ellie Scally at Ellie.scally@clarionsolicitors.com