These section 49 reports must be provided free of charge and, in the case of mental capacity reports, can create a significant burden for clinicians in an already over-stretched system.

This has become a real bone of contention for the NHS Trusts whose clinicians have to put time into preparing these reports. So much so that the Court of Protection’s Vice-President has recently met with ‘the NHS Mental Health Directors’ to discuss the issue and has subsequently published a letter underlining when an application/order for a section 49 report is (and is not) appropriate.

In this briefing, we look at what that letter says and its potential impact.

What is the latest from the Court of Protection on section 49 reports?

When a clinical opinion is needed to inform a Court of Protection decision about an individual’s mental capacity and/or best interests, the route for obtaining this will often be to ask the Court to order an NHS body to produce this information via a ‘section 49 report’ (which cannot be charged for), rather than by commissioning an independent expert report (which will come at a cost).

However, as the Vice-President of the Court of Protection has explained in a recently published letter following a meeting with ‘the NHS Mental Health Directors’ on this issue, concerns have been expressed about the scope and ambit of section 49 reports and - specifically - there is a “strong feeling” that some section 49 requests are “disproportionate, overly burdensome, and wrongly authorised”.

It is acknowledged in the Vice-President’s letter that the fact section 49 reports must be produced free of charge is a key driver here: “There are obvious reasons (i.e. costs) why a Section 49 report might be preferred where what is truly required is an independent expert report”.

The letter goes on to emphasise, however, that section 49 reports are typically appropriate where the NHS body being asked to produce the report “…has a patient in their care, who is known to them”, which should mean the clinician can “draw quickly on his knowledge of the patient and respond concisely to the identified questions”.  Importantly, the letter goes on to say, this avoids the patient having to meet with a further professional with whom he or she has no existing relationship.  Although the letter stops short of saying so in terms, we read this as meaning that in the Vice-President’s opinion it will not generally be appropriate to require a section 49 report from an NHS body if the patient is not in their care and known to them.

The Vice-President’s letter also goes on to remind those preparing letters of instruction under section 49 that these should be clearly focused with tight identification of the issues and reports should not require “extensive analysis” across a wider range of questions than those contemplated in Practice Direction 14E, which sets out the requirements around section 49 reports.  As the letter states: “Reports requiring that kind of response should be addressed to an independent expert”.

The Vice-President has attached to his letter a copy of Practice Direction 14E on which he has highlighted the paragraphs he wishes to emphasise.  As well as highlighting the paragraph concerning the NHS body’s knowledge of the person, he has also usefully highlighted the procedural point that before making any application for a section 49 report the party applying should contact the NHS body to make them aware that the application will be made. 

This is a welcome intervention from the Vice-President and, whilst the legislation and Practice Direction remain unchanged, his letter gives greater opportunity for hard-pressed NHS Trusts to argue against proposed orders for section 49 reports, especially where the person in question is not known to them or in their care. 

How we can help

Our team of Mental Capacity Act specialist lawyers can advise on all aspects of Court of Protection  proceedings, including issues relating to section 49 reports, such as:

• Advice on challenging section 49 requests and orders where appropriate, including applications to the Court of Protection to vary section 49 orders and timeframes

• Advice to clinicians on section 49 reports and follow-up questions, including providing support when called to give evidence in Court

• Assistance with developing effective Trust processes and procedures relating to section 49 reports, including help with producing bespoke guidance and templates for clinicians writing section 49 reports