Parishil Patel KC
Year of call: 1996
Silk: 2018
In this important judgement, Mr Justice Hayden provides authoritative guidance on the scope of section 49 orders, clarifying his recent practice guidance handed down in December 2022 (Section-49-Guidance-December-2022.pdf (mentalcapacitylawandpolicy.org.uk). This case is the first time that the higher courts have considered the scope and application of section 49 Mental Capacity Act 2005, and the first time that Practice Direction 14E has been examined in detail by the courts. In this judgement, Mr Justice Hayden rejects the argument, that is often advanced by NHS Trusts, that requiring a section 49 report to be produced for someone who is not open to services, equates to directing the provision of services, which the court has no power to do, as per N v A CCG [2017] UKSC 22. Instead, Mr Justice Hayden lays down some clear general principals, namely
Parishil Patel KC (39 Essex Chambers) and Rebecca Clark (Exchange Chambers) acted for the applicant, Eliza Sharron (39 Essex Chambers) acted for the ALR and Adam Fullwood (39 Essex Chambers) acted for the Trust.
A copy of the judgement is available on Bailli at Cheshire and Wirral Partnership NHS Foundation Trust v JMC & Anor [2023] EWCOP 14 (20 April 2023) (bailii.org)