New Section 49 pilot comes into force in June – are you ready?
27th May, 2016
What is a Section 49 report?
Section 49 of the Mental Capacity Act 2005 (‘the Act’) makes provision for the Court to require a report to be produced on a patient about whom the Court is considering a question.
The Court can order an NHS body to produce a report even if it isn’t party to the Court proceedings. These reports can be time-consuming and must be done for no charge.
The NHS body is not always aware of the requirement to produce a report until they are served with the Court Order and the timescales for producing the report may be tight.
What is changing?
There is a new Court of Protection pilot for Section 49 reports which is coming into force in June 2016. Please click here to view the new practice direction (Practice direction 14E pilot).
This requires that wherever practicable, before making an application for an Order requiring a report under Section 49, a party to the proceedings should use their best endeavours:
- To make contact with an appropriate person within the relevant NHS body so they are made aware that an application is to be made, its purpose and the issues or questions which are hoped to be addressed within the report;
- To identify a named person or a named role who will be the “senior officer” within the relevant NHS body who is able to receive the Court Order on behalf of the NHS body; and
- To enquire as to the reasonableness and timescales for providing the report should the Court order it.
The party making the application must submit a draft letter of instructions to accompany the draft Order. If the Court approves the Order, a copy of the approved Order and the letter of instruction must be served on the senior officer at the NHS body as soon as reasonably practicable but in any event within 48 hours of the Order being made.
The senior officer at the NHS body must ensure that:
- A person with appropriate expertise and knowledge is nominated to make the report; and
- The parties to the proceedings are notified of the name and contact details of the nominated person as soon as practicable but in any event before the end of the period 7 days after the senior officer received the Order.
What does this mean for NHS bodies?
This pilot for Section 49 reports seeks to address the issues that NHS bodies have had with being served with Orders requiring them to provide these reports without any prior knowledge and sometimes within very tight timescales.
NHS bodies should now be notified in advance of an Order for a Section 49 report being made and will be able to provide some input into what is a reasonable timescale for the production of the report.
What should NHS bodies do?
NHS bodies need to consider who will be the person who will act as senior officer and who will receive Orders about Section 49 reports. This could be a named person or someone in a specific role.
Once this is decided, this should be communicated across the organisation and to those bodies who may require a Section 49 report. The senior officer must ensure that they are aware of their obligations under the practice direction.
How can Ward Hadaway help?
If you have any queries about this process or have any concerns about the reasonableness of a section 49 report that your organisation has been asked to prepare please contact Alexia Dawson.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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