Section 49 of the Mental Capacity Act 2005 (MCA) allows judges in the Court of Protection (COP) to make orders requiring an NHS body or local authority to provide a report about an individual (P) who is the subject of proceedings before the court.
Typically, these reports will be required to address the issue of P’s mental capacity to make specific decisions about his or her residence, care and treatment, contact and other decision that we all as adults with capacity make in our everyday lives.
The section 49 Practice Direction (PD) came into force in June 2016 as a result of there being an inconsistent approach in how section 49 orders were being applied for and granted by judges in the COP. The PD is intended to give some uniformity of approach in this area by both lawyers and judges involved in COP proceedings.
Prior to the PD coming into force, there was some debate about its content and wording; I know that because I feed into that process (after having expressed my concerns to the then COP presiding judge in Birmingham) about how section 49 of the MCA was being regularly used to obtain free reports from the NHS.
In essence, the concerns that I had were:
- Orders being made without prior discussion with the NHS body concerned.
- Orders not being served in a timely manner with very short deadlines.
- The use of section 49 to circumvent the use of fee paid expert witnesses.
- The time and resource consequences impacting the NHS as a result of the requirement to provide these reports.
Shortly before Christmas, the Vice President of the COP, The Honourable Mr Justice Hayden along with Her Honour Judge Hilder met with NHS Mental Health Directors who had expressed concerns that some section 49 requests were disproportionate, overly burdensome and wrongly authorised. It was noted that there were obvious reasons why a section 49 report might be preferred when what is actually required is an independent expert report. The obvious reason being that a fee cannot be charged for the preparation of a section 49 report as opposed to an independent expert report.
In his letter dated 16th December 2022 Mr Justice Hayden writes:
“Section 49 reports are, paradigmatically, appropriate where the NHS body (typically a Mental Health Trust) has a patient within their care, who is know to them. This ought to enable the clinician to draw quickly on this knowledge of the patient and respond concisely to the identified questions, which will be directed to the issues clearly set out in the Practice Direction. Importantly, it avoids the patient having to meet a further professional with whom, he or she, has no existing relationship."
He qualified this by saying:
“Instructions under Section 49 should be clearly focused with tight identification of the issues. It should be expected that reports will be concise and will not require extensive analysis across a wider range of questions than those contemplated in the Practice Direction. Reports requiring that kind of response should be addressed to an independent expert."
Mr Justice Hayden took this opportunity to recirculate the PD stating that it required “no gloss or embellishment”.
If you would like support or assistance in relation to any aspect of section 49 reports under the MCA, please don’t hesitate to get in touch.
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