Guidance

Public Guardian practice note (PN6): Court of Protection visitors and the release of their reports

Published 17 July 2017

Summary

This practice note explains who Court of Protection visitors are and their role in preparing reports. It also explains when reports can be released and who they can be released to.

Regulations allow the Public Guardian to release a copy of a visit report to people the visitor has interviewed while preparing the report. A visit report may be released to people or organisations included in a Public Guardian application to the Court of Protection or supplied to the police or a local authority in an investigation.

Personal information in a visit report may be released following a Data Protection Act subject access request.

The Court of Protection can order reports by a visitor to help with its decision-making. Reports produced for the court can only be released with the court’s permission.

Reports produced by the former Lord Chancellor’s visitors – before the Mental Capacity Act 2005 was introduced, on 1 October 2007 – are records of the Court of Protection. They can also only be released with the court’s permission.

Who Court of Protection visitors are

The role of Court of Protection visitors is statutory – defined by law – under section 61 of the Mental Capacity Act 2005 (also referred to here as ‘the act’).

There are two types of visitors: special visitors and general visitors.

Special visitors are medical practitioners who have special knowledge of mental incapacity. (‘Mental capacity’ means the ability to make your own decisions.)

General visitors do not need to be medically qualified but they do need to have experience of mental incapacity.

The Office of the Public Guardian (OPG) administers a panel of Court of Protection visitors. Visitors mainly work as contractors, although OPG employs a small number of general visitors directly. Visitors carry out visits throughout England and Wales.

The role of Court of Protection visitors

Section 58(1)(d) of the act allows the Public Guardian to direct a Court of Protection visitor to visit and report back on matters that he requires. Visitors report independently to the Public Guardian, to help him in his role of supervising deputies and investigating concerns about the actions of a deputy or attorney.

Section 49(2) of the act provides that the Court of Protection (‘the court’) may request a report to be made to itself, either by the Public Guardian or by a Court of Protection visitor, to help with decision-making.

Court of Protection visitors can visit anyone they are directed to by the court. They can be directed by the Public Guardian to visit people who have a deputy appointed by the court to make decisions for them, as well as donors and attorneys acting under registered enduring or lasting powers of attorney. (A ‘donor’ makes a power of attorney; an ‘attorney’ makes decisions for the donor.) They may in some circumstances visit someone before the registration of a lasting or enduring power of attorney.

In carrying out their duties, Court of Protection visitors are able to look at and take copies of records such as health records, care records and any social services records from the local authority about the person lacking mental capacity. They may also interview the person lacking mental capacity in private.

Release of a report by the Court of Protection

Reports produced by the former Lord Chancellor’s visitors – before the Mental Capacity Act 2005 was introduced, on 1 October 2007 – are records of the Court of Protection. They can only be released with the court’s permission, if appropriate.

Visitors’ reports prepared for the court are given to people directly involved in the case under Rule 117 of the Court of Protection Rules 2007 (‘COP Rules’), unless the court orders otherwise. Those people include:

• the person(s) making the application (applicant(s))
• the person(s) who the application is against or who it needs a response from (respondent(s))
• other parties involved in the case that the court may state

Under Rule 17 of the COP Rules, someone who is not a party to the case can apply to the court for a copy of a report. The court may provide an edited version of the report. Reports produced for the court can only be released with the court’s permission.

You apply to the court using form COP9.

There’s no fee. You can also call the Court Enquiry Service on 0300 456 4600.

Release of a report by the Public Guardian

The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (LEPR) allow the Public Guardian to release a copy of a visit report to people the visitor has interviewed while preparing the report.

Regulation 44 of LEPR allows the Public Guardian to release a visitor’s report to people interviewed while preparing the report and to invite them to comment on it.

A visit report may be released to people or organisations included in a Public Guardian application to the Court of Protection or supplied to the police or a local authority during an investigation. These could include the deputy, donor, attorney or any third party (someone who is not the client or deputy, or donor or attorney) interviewed by the visitor, such as a relative or carer.

You can ask for a copy of a visit report by emailing OPG’s information assurance team at OPGInformationAssurance@publicguardian.gov.uk or by writing to them at the address at the end of this practice note.

The Public Guardian can choose not to release a report if it contains information that:

• might go against a third party’s data protection rights
• was told to the visitor in confidence by a third party
• could be harmful to anyone named in the report

The Public Guardian can also protect the identity of someone making an allegation of abuse. A visit report may therefore sometimes be released with parts ‘redacted’ (removed).

Release of assurance visit reports

As part of the supervision of professional, public authority or other paid deputies, the Public Guardian may commission an assurance visit. An assurance visit reports on the performance of a professional deputy against published standards and includes visit reports to a selection of the deputy’s clients.

If you are a professional deputy who has had an assurance visit, OPG’s supervision team will write to you outlining the findings of the visit and will tell you if there is anything you need to do as a result.

You can ask for a copy of an assurance visit report by emailing OPG’s information assurance team.

Release of reports to other Court of Protection visitors

As part of the Public Guardian’s duties to supervise or investigate, reports prepared for OPG since October 2007 may be released to a visitor who is visiting people in the same case.

Release of reports to the police

Reports prepared for the Public Guardian since October 2007 may be released to the police if they are investigating whether a crime has taken place.

Release of reports to local authorities and others

Section 58(2) of the Mental Capacity Act 2005 allows the Public Guardian to cooperate with anyone involved in the care of a person without mental capacity.

The Public Guardian will decide whether to reveal a visit report, or part of a visit report, to local authority social services, health bodies or care providers where either:

• the welfare of the client demands it
• it will help the supervision of, or investigation into, the actions of a deputy or attorney

OPG also has a safeguarding policy that promotes sharing of information where necessary to:

• safeguard adults at risk
• prevent someone being abused
• deal with someone who is abusing someone else

OPG may share information from a visit report with a local authority or other agencies with a duty to protect the client in these circumstances.

Release of reports in Public Guardian court applications

Visit reports prepared for the Public Guardian may be used as evidence in applications to the Court of Protection. In that case, the Public Guardian ‘serves’ (formally delivers) a copy of the report on the parties to the application (the people and any organisations involved in it) unless a judge orders otherwise.

If you give any information to a visitor in confidence, and you are concerned that revealing your name to other parties in a court application could cause you physical or psychological harm, then you should tell the visitor.

If OPG considers that your evidence is important, it will contact you before it makes a court application to ask whether your name can be revealed in court. If you say no, OPG will consider asking the judge to protect your identity.

Release of a report under the Data Protection Act

Section 7 of the Data Protection Act 1998 (DPA) lets people see personal information held by public or private organisations. This may be:

• information about themselves (known as a subject access request)
• information about the person the individual is acting for under a registered enduring power of attorney, lasting power of attorney or Court of Protection deputyship

Find out how to request release of a report under the DPA.

You have to pay a fee to make a request. If a visit report is released following a request, then information that isn’t about the subject of the request and the names of some third parties will be redacted under the DPA.

Personal information in a visit report may be released following a DPA subject access request.

For further advice from OPG

Email: customerservices@publicguardian.gov.uk
Phone: 0300 456 0300

Office of the Public Guardian
PO Box 16185
Birmingham B2 2WH