Some Court of Protection report orders ‘overly burdensome’, warn mental health leaders

Leading judge shares criticisms from NHS heads regarding some court requests for reports under section 49 of the Mental Capacity Act and stresses such orders should be "clearly focused"

Mental Capacity Act
Photo: Gary Brigden

Some Court of Protection orders for professional reports on people subject to proceedings are “disproportionate, overly burdensome, and wrongly authorised”, mental health leaders have warned.

The court’s vice-president, Mr Justice Hayden, shared feedback from mental health trust directors regarding orders for reports under section 49 of the Mental Capacity Act 2005, in a letter to fellow judges issued last month. This followed a meeting he and senior Court of Protection judge Her Honour Judge Hilder had held with trust directors.

Mr Justice Hayden also stressed to colleagues that orders for section 49 reports should be “clearly focused with tight identification of the issues”, and that reports should not require “extensive analysis”.

Section 49 allows the court to require a local authority or NHS body to produce a report concerning a question relating to the person who is the subject of proceedings (“P”), which must address the issues specified by the court.

While these are sometimes required of councils regarding P’s social circumstances, they are much more often ordered from mental health trusts in relation to the person’s capacity, with psychiatrists often nominated by their employers to produce the report.

Mental health trust concerns

Trusts have raised concerns previously about being required to produce reports for people who are not their patients but happen to live in their catchment areas, thereby requiring more work for the practitioner nominated to write it.

This is despite a practice direction on the use of section 49 stating that one of the factors the court may consider when ordering a report is that the public body in question “has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation”.

A study published last year in the BJPsych Bulletin, based on a survey of 104 learning disability psychiatrists, found that two-thirds had been asked to prepare a section 49 report and, of those, half had been asked to provide an opinion outside of their area of subjective expertise.

However, unlike with instructing an independent expert, there is no charge to the court or to any of the parties from ordering such a section 49 report, with the effective costs being borne by the relevant council or trust.

‘Disproportionate and overly burdensome’

This was flagged up by Mr Justice Hayden in his letter.

“There was a strong feeling [among NHS mental health directors] that some of the Section 49 requests are disproportionate, overly burdensome, and wrongly authorised,” he said. “There are obvious reasons (ie costs) why a Section 49 report might be preferred where what is truly required is an independent expert report.”

“Instructions under Section 49 should be clearly focused with tight identification of the issues,” he added. “It should be expected that the 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.”

His letter quoted the practice direction in full, highlighting key sections including:

  • the reference to the public body knowing P being a factor the court may consider in ordering a report;
  • the need for a party to proceedings to, wherever practicable, use their best endeavours to contact the appropriate person at the relevant trust or local authority before making an application for a section 49 report;
  • that the report should contain four main sections: the author’s details, P’s details, the evidence considered in compiling the report and the conclusions.

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