Mr Justice Hayden, Vice President of the Court of Protection, has published a letter reinstating the position of Section 49 MCA 2005 reports following concern over the “scope and ambit” of their use.
Hayden J had met with NHS Mental Health Directors as well as Mrs Justice Hilder prior to the letter, which read as follows:
“Earlier this week I met with the NHS Mental Health Directors along with Her Honour Judge Hilder. Concern had been expressed about the scope and ambit of Section 49 reports. There was a strong feeling that some of the Section 49 requests are disproportionate, overly burdensome, and wrongly authorised. 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.
Section 49 reports are, paradigmatically, appropriate where the NHS body (typically a Mental Health Trust) has a patient within their care, who is known to them. This ought to enable the clinician to draw quickly on his 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 with a further professional with whom, he or she, has no existing relationship.
Instructions under Section 49 should be clearly focused with tight identification of the issues. 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.”
Hayden J then reiterated Practice Direction 14E on s.49 reports “which requires no gloss or embellishment”. The full letter, as well as the practice guide (with notable paragraphs highlighted by Hayden J), is available here.
