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Understanding the Role of Court of Protection Visitors and the Release of Reports

elliescallyLeave a comment

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

NHS Trust v CD Ors – Can the COP consent to the withdrawal of life sustaining treatment?

Stephanie KayeLeave a comment

In the recent case of London NHS Trust v CD & Ors, P was a 20 year old woman who, on 18 January 2021, attempted suicide. She was discovered by the staff at the unit where she was a patient and was taken to a London Hospital where she has remained in intensive care since.

The case

As a result of the lockdown, P had returned from university to reside with her mother and sister from March to December 2020. During this time, she had been having psychiatric troubles whereby she had attempted to take an overdose of paracetamol and as a result, was voluntarily admitted to a private psychiatric hospital. It was as an inpatient at the facility where P tried to end her life.

P’s father commenced proceedings on 26 January 2021 to be appointed as her welfare Deputy. On 15 February 2021, P’s Mother applied to be appointed alongside others as P’s welfare and property and affairs Deputy. The consent orders were approved and the NHS were requested to file evidence.

On 9 March 2021, J Williams declared that P lacked the capacity to conduct the proceedings and to make decisions as to her care and treatment. Evidence was provided by the P’s neuro critical care consultant, consultant neurologist and an external second opinion from Dr Andrew Hanrahan, who all agreed that P had sustained extensive hypoxic brain damage as a result of the attempted suicide. This resulted in her being either in a persistent vegetative state or the lower level of minimally conscious state. The Trust’s treating team concluded that it was not in P’s best interests and it would be unethical to continue providing life sustaining treatment, specifically clinically assisted nutrition and hydration. P’s mother and sister agreed with the treating team however, P’s father did not agree.

Conclusion

The Court took into account all of the medical evidence provided in relation to P’s condition and prognosis and the understanding of the P’s personality, wishes and values. The Court concluded that it was not in P’s best interests to administer the life-sustaining medical treatment. Instead it was concluded that a palliative care regime would be implemented which would consequently allow her life to end.

You can find out more about our services here or you can contact the Costs and Litigation Funding team at costs.support@clarionsolicitors.com.

PLK & Others – can you recover the higher rates?

laura courbetLeave a comment

There have been ongoing discussions between some of our clients and the SCCO in relation to the uplift in hourly rates under this recent case. This is on the basis of firms seeking the increased rates backdated to 2018, but frustratingly, regularly been restricted to the 2010 rates.

The Court have continued to ask for sight of client care letters to ensure the indemnity principle has not been breached. Many firms have been appealing this decision on the basis that there can be no breach of the indemnity principle in the absence of hourly rates in the client care letter with the added argument that the Protected Party cannot consent to the hourly rates, so the document simply does not exist in many cases.

We have received lengthy advice from the Court on this issue.

The Court firstly refer back to the position of Helene Maxwell; who wrote to Professional Deputies on 1 October 2020 to clarify that Costs Judge Whalan’s judgment would not permit rates to be claimed at more than had been agreed between Solicitor and Client.

The Court further added that some practitioners have characterised this as Ms Maxwell seeking to limit the effect of Costs Judge Whalan’s judgment and asserting that she has contradicted Costs Judge Whalan’s express application of his direction in PLK to costs claimed for general management years going back to 2018. However, what Costs Judge Whalan held in PLK regarding what is reasonable, is not incompatible with what Ms Maxwell wrote about what is recoverable. These two terms are not interchangeable and should not be treated as such, but this basic misunderstanding has caused great difficulty to practitioners since PLK.

The Court also advise that the limits referred to first by Ms Maxwell and latterly by Senior Costs Judge Gordon-Saker, in the Practice Note of October 2020, are to do with the retainer between the Solicitor and their client, and not to do with the historic issues around the 2010 GHR, as addressed by Costs Judge Whalan in PLK.

The main point arising from the advice is that on basic contractual principles, a firm cannot increase its hourly rates retrospectively, and if its terms of business are couched in vague terms as to what those hourly rates are, the default position is that costs will be allowed on a quantum merit basis at the ‘reasonable’ rate. As the previous Practice Note of October 2020 indicates, and as the Costs Officers have been instructed to apply, the 2010 GHR without the PLK uplift apply.

Costs Officers are taking the harsh approach that in the absence of evidence by way of a client care letter, terms of business or other agreement which pre-dates the judgment to indicate that the Deputy can recover higher rates, 2010 rates will apply. It would be almost impossible to produce such paperwork in most cases, because no one could have predicted what the hourly rates approved in PLK would be before the judgment was shared. It is therefore incredibly unlikely that COP teams will recover any time which pre-dates PLK at the higher rates.

Going forward, we urge all professional deputies to update their retainer paperwork from the 30th of September 2020 to reflect the PLK & Others hourly rates, otherwise the Costs Officers may argue that you are not entitled to the rates, even for time incurred after the decision, as you will have no client specific proof that the indemnity principle is not in breach.