By Rosa Beswick-Maddocks, 5th August 2021
Editorial update: In 2022, the British Medical Association (BMA) published a guidance note for doctors who are called on to complete s.49 MCA reports.
If you observe Court of Protection hearings you may often hear lawyers referring (without explanation) to a “section 49 report”. They may ask the judge to order one, or talk about a report they’ve received.
This explainer blog is to help you understand what a “section 49 report” is (and how it is different from an “expert report” or an “independent report” – even though, of course, the people who write section 49 reports are also “experts”).
The Mental Capacity Act 2005
Section 49 of the Mental Capacity Act 2005 makes provision for the Court to require a report to be produced in respect of the Protected Party (P), about whom the Court is considering a question. Through section 49, the Court can order (most typically) the NHS body responsible for the area where P lives to produce a report even if it isn’t a party to the Court proceedings.
A section 49 report is often considered as an alternative to a report by an independent expert. Whilst reports by independent experts can be obtained by the parties at private expert rates, no provision is made within section 49 in relation to fees or expenses incurred by the body directed to produce the report, and so the cost is therefore borne by the body directed to produce the report. Bearing in mind the considerable costs associated with expert reports and the fact that in the majority of Court of Protection cases most, if not all, of the parties will be publically funded (either by virtue of being public bodies such as the responsible Local Authority or Clinical Commissioning Group or because their legal representation will be funded via Legal Aid) seeking a section 49 order can be a more agreeable position when questions are raised which properly require the production of a report.
When a section 49 report might be helpful
A common scenario when a section 49 report might be considered is when P’s capacity is in question. In such a case, the parties might seek an order requiring the NHS Trust to arrange for a consultant psychiatrist to assess P’s capacity and produce a report. Depending on the particular circumstances, the appointed clinician might also be asked to consider additional, specific areas of capacity and to make recommendations regarding the management of P’s condition and best interests more generally. For example, in cases where P has a co-morbid condition such as diabetes and the impact of alcohol is an issue, the parties might ask that the report address P’s capacity to make decisions about alcohol consumption when considered in the context of diabetes and the associated risks.
Section 49 reports can be obtained on a range of specialisms and the type of report sought will depend on the specific issues requiring consideration. For example, where a return home is being seriously considered, the parties might ask the Court to make a section 49 order directing an Occupational Therapist at the named NHS Trust to assess P and P’s home and set out their findings in a report. In such a case, the OT would often be asked to address work which can be done with P and any referrals which should therefore be made, adaptations to P’s house and equipment which would be required in the event that P were to return home and any concerns, risks or recommendations identified. If the potential for improved mobility might be a factor in weighing up the feasibility of a return home, the parties might also seek a section 49 order requiring one of the Trust’s physiotherapists to assess P’s mobility and make any recommendations for exercises which could be completed to try to improve P’s mobility.
Potential advantages of section 49 reports
As outlined above, a section 49 report can be preferable to instructing an independent expert bearing in mind that the former is produced free of charge to the parties at a lower cost to the NHS Trust when compared with the private fees of an independent expert.
Where P is receiving input from an NHS Trust, where possible, the Court will often ask that the section 49 report to be produced by P’s treating clinician, if possible. This is advantageous in that the assessing clinician will already know P and have a relationship with P which might help to facilitate P’s engagement. In comparison, an independent expert will not have met P previously and will therefore have to develop a rapport with P and, in some cases, P may not engage with a clinician who they are not familiar with and do not already trust.
In this way, a section 49 report also saves duplication of work because the treating clinician will already be familiar with P and their case. In contrast, an independent expert will have to spend considerable time reviewing all the documents in detail in order to ascertain the necessary background information and build a rapport with P, all charged at private hourly rates, while P’s treating clinician will already have done this in the course of their work with P.
Potential limitations of section 49 reports
However, NHS Trusts do state that complying with such requests places a burden on their limited resources and they may have no prior knowledge of P. Clinicians are not allotted additional paid hours in which to complete these reports and this can result in considerable delay in reports being produced. Further, in some instances the reports can subsequently be found to be lacking in detail due to the time pressures under which they have been completed, in which case an independent report might still be required. In this way section 49 reports can therefore cause duplication of work as well as delay, so if there is an urgency to the need for the report an independent expert might be preferable.
How the courts seek to balance these issues
In the recent case of RS v LCC & Ors  EWCOP 56, District Judge Bellamy was clear that while the Court does sympathise with the effect section 49 requests have on Trusts, the Court would seek to deal with such difficulties by narrowing the scope of the report to make it less onerous or by extending the timescale in which it is to be produced. (See the commentary on this case from 39 Essex Chambers here.)
In this spirit, and to avoid the Trust subsequently having to apply to the Court for such an amendment, Practice Direction 14E requires that, wherever practicable, before making an application for a section 49 order, a party to the proceedings should use their best endeavours to make contact with an appropriate person at the NHS body so that they are aware that an application is to be made, its purpose and the issues or questions which are to be addressed within the report and to enquire as to the reasonableness and timescales for providing the report should the Court order it.
In summary, section 49 reports can be a helpful way to obtain answers when it might not be considered proportionate to incur the fees of an independent expert and the proposed instruction of one might be contentious. However, the potential limitations of section 49 reports should be borne in mind and the decision whether to seek a section 49 order or an order for the instruction of an independent expert will always be very fact and case specific.
Rosa Beswick-Maddocks is a paralegal in the Public Law and Human Rights Department at Irwin Mitchell in Newcastle. She has worked at Irwin Mitchell for over 2 years on matters such as health and welfare cases in relation to vulnerable adults in the Court of Protection and public law challenges including applications for judicial review.
Photo by Luca Bravo on Unsplash
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