Section 49 reports
Details
What are section 49 reports?
In essence they are a report prepared in respect of a patient who may lack capacity.
Under section 49 of the Mental Capacity Act 2005 (MCA), the Court of Protection can order reports from NHS health bodies and local authorities when it is considering any question relating to someone who may lack capacity and the report must deal with ‘such matters as the court may direct.’
An order under section 49 of the MCA does place an obligation on the NHS trust to comply, although it is for the trust to determine the appropriate person to complete the report. There is no right to charge a fee for preparing a section 49 report.
We are aware that section 49 reports are currently being requested on a frequent basis, often from trusts which have had no previous dealings with P. It seems that some organisations see it as a way to obtain an independent expert report on the person who lacks capacity without having to pay for it.
Obligations to report
In a recent Court of Protection case of RS -v- LCC and others [2015] EWCOP 56 the judge dismissed 10 arguments put forward by the NHS Trust that it should not be required to provide a report and affirmed the wide-ranging power of the court to order reports. This judgment is not binding which means that it does not force the conclusion that section 49 orders made in all cases will be appropriate. However, it is likely be persuasive in other similar cases.
The court has wide powers to call for section 49 reports but these requests are not always directed to the appropriate statutory body. It is possible to challenge an order requiring a section 49 report but you need to engage with the court process in order to do so.
One very important factor should be the consideration of who is the most appropriate statutory body to complete the report. When seeking to deal with cases fairly and proportionately, the court should consider whether there is a public body which already owes a statutory duty to assess and meet the identified needs of that person.
We have successfully challenged orders directing NHS trusts to provide reports under section 49 on the grounds that that trust is not the correct statutory body to carry out that assessment. In some cases, the order has been revoked so the NHS trust has not had to provide any report at all. In other cases the scope of the report has been significantly reduced.
Top tips for dealing with section 49 reports
1. Practice direction 14E sets out some of the requirements for section 49 reports.
2. The court should send an order under section 49 to a ‘senior officer’ of the trust. We suggest identifying someone to receive the orders so that they can allocate the requests to the appropriate person and monitor how many requests are received.
3. When you receive a request to provide a section 49 report you have seven days to nominate an appropriate person to complete the report and notify the court of this.
4. Check whether the subject of the report is someone you are currently providing services to – if not, consider whether you are the correct body to provide the report.
5. If you want to challenge the order you need to make an application to the Court of Protection for it to be amended – don’t just ignore it!
6. If you do decide to provide the report then the nominated person is able to examine and take copies of:
- Any health records
- Any social care records
- Any care records
We offer an extensive range of legal training for mental health and social care providers. If you would like any advice or assistance in dealing with requests for section 49 reports then please one of our authors.
