In 2017 the Office of the Public Guardian (OPG) released a useful practice note (PN6) with guidance on what Court of Protection Visitors are, their role and the release of their reports.
There are 2 types of Court of Protection Visitor, defined under section 61 of the Mental Capacity Act 2005 namely, Special Visitors and General Visitors.
- A Special Visitor: is a registered medical practitioner (or has other suitable qualifications or training) with special knowledge and experience of mental incapacity, which is defined as an impairment of or disturbance in the functioning of the mind or brain.
- General Visitors: do not need to be medically qualified but with experience of mental incapacity.
The role of Court of Protection Visitors is to assist the OPG to supervise deputies, investigate any concerns that may have been raised about their actions and predominantly to produce reports of their findings to the OPG which may assist the Court of Protection with its decision making. Their authority stems from section 49(2) and 58(1)(d) of the Mental Capacity Act 2005.
In order to complete their reports, Court of Protection Visitors are entitled to access health records, care records and any social services records from the local authority about the protected party (the person lacking capacity). They can also interview protected parties in private.
Court of Protection visitors can carry out visits throughout England and Wales and are appointed by the Lord Chancellor. Although they can visit anyone they are directed to by the Court, it most commonly includes a visit with the protected party themselves, their Court appointed Deputy or any attorneys appointed under a Lasting Power of Attorney.
Release of a report by the Court of Protection
Any report produced by a Court of Protection visitor before 1 October 2007, before the Mental Capacity Act 2005 came into force, requires the Court’s permission to be released and will only be supplied if the Court considers it appropriate to do so.
In accordance with the current Court Rules, reports prepared for the Court can be released to the following people, unless the Court orders otherwise:
- The applicant (i.e. the person that made the application to the Court of Protection, e.g. the proposed deputy or attorney);
- The protected party or any respondent to the application;
- Other parties the Court has stated to be involved in the case and has an interest in seeing the contents of the report.
Anyone else can apply to the Court under rule 17 of the COP Rules for a copy of the report by using form COP9. There is no fee for making the application, although the request for disclosure will need to be made with appropriate evidence in support.
Release of a report by the OPG
Under regulation 44 of The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 the OPG can release a report to anyone the visitor has interviewed for the purpose of preparing the report. This is wide ranging and could include a deputy, donor, attorney, relative, carer or any third party.
The report can also be supplied to the police or a local authority during an investigation.
However, the OPG can choose not to release a report or to redact it to protect the identity of someone.
For more detailed information on this subject, the full Practice Notice can be accessed by clicking here.