Mental Capacity Case

Cheshire and Wirral Partnership NHS Foundation Trust v JMC & Anor

Hayden J

Hayden J has returned to the vexed question of s.49 reports.  As Hayden J noted: 

8. In December 2022, I met with the NHS Mental Health Directors. Concern had been expressed about the burden experienced by the medical profession in reports requested pursuant to Section 49. There was a clear and strong feeling that some of the Section 49 requests were becoming disproportionate, overly burdensome, and wrongly authorised. Having been convinced of the legitimacy of this sensitively expressed complaint, I issued guidance to the profession to highlight the problem. As I noted in that guidance, 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. I also made the following observation:
“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.”

In the instant case, a District Judge had granted an application for a direction for an NHS Trust to file a s.49 report, outlining her reasons for doing so thus: 

18. I do have a very wide discretion pursuant to section 49 to call for information from, amongst other people, a local authority or an NHS body dealing with such matters relating to P as the court may direct. I must operate that section firstly, in accordance with the overriding objective of the rules of the Court of Protection … and with regard to PD 14E. The PD lists common factors that I may consider. Many are plainly not relevant to this case but my view is that factors (d), (e) and (g) are ones that I must consider.

19. Very plainly if I do make a direction for section 49 report from an NHS Trust, I am always calling upon their resources in order to prepare that report. In this respect, resources are not just financial. Clinicians will be called upon to spend their time preparing and writing the report. The reality is that, if it is a report about a party with whom they are very familiar with and are engaged in treating, it may reasonably be said that the preparation of the report is less resource intensive that if they have a lesser degree of familiarity. It also seems to be self-evident that an NHS body can only provide a report relating to information which is within their remit. If any information that is required is properly within the remit of the local authority, then fairly self-evidently it is the local authority who should provide that information.

The Trust sought permission to appeal the decision.  Although it acknowledged that it had the most recent knowledge of P, he had disengaged as a patient and their involvement discontinued on 1st April 2020. The Trust further argued that the District Judge ought to have, at least, considered directing the Local Authority to provide a comprehensive care assessment and support plan, identifying their duties and proposals to support JMC to identify an alternative accommodation with a support package, pursuant to section 35 of the Social Services and Well-being (Wales) Act 2014; applying the Care and Support (Eligibility)(Wales) Regulations 2015. Regulation 3(a) provides that the criteria is satisfied if the needs arise from the adult’s “physical or mental ill-health, age, disability, dependence on alcohol or drugs or other similar circumstances”.  The Trust further contended that responsibility for providing the information sought by the District Judge had migrated to the GP, not the Trust; and that the wider panoply of P’s needs become eclipsed by the local authority’s own prevailing duties.  Therefore, whilst the Trust had originally accepted a referral to assess and provide reports (under s.49) in relation to P: 

However, on 1 April 2020 it decided to discharge him from their service on clinical grounds. That was a proper decision that was not challenged and could not be challenged other than on public law grounds. Thereafter, JMC has been referred on at least two subsequent occasions but on each occasion the Trust has decided not offer services to him based on proper clinical grounds.

Accordingly, the Trust argued that the Court of Protection was directing the Trust to provide services that it has decided are not appropriate. As Hayden J identified: “[i]f that were in fact the case, then manifestly, it would be wrong in law, see: N v A CCG [2017] UKSC 22.”

Hayden J had little hesitation in refusing permission.  In so doing, he outlined some “clear general principles.” 

18. Firstly, section 49 of the MCA manifestly conveys upon the Court a broad discretion, when deciding to request a report and in respect of the scope of it. Inevitably, however, such a discretion is not to be regarded as unfettered. Thus, the Court is confined to considering questions directly relating to P. Here, the proceedings concern a determination of best interests under section 21(A) of the MCA, as a facet of the standard authorisation. It is well established that proceedings brought pursuant to section 21(A) are the mechanism by which the State must achieve compliance with Article 5 ECHR concerning P’s deprivation of liberty at a relevant care facility. Article 5(4) ECHR requires that review, in the sense of keeping in scope the continued lawfulness of any detention, should always take place speedily. As Mr Patel has emphasised, the character of the Court of Protection jurisdiction is non-adversarial, inquisitorial, sui generis. Such a jurisdiction will always require a broad margin of discretion in eliciting information it considers necessary to illuminate the question in focus. (emphasis in original) 

19.  Secondly, as I have already foreshadowed, the Court must have regard to the Practice Direction 14E. In particular, paragraph 3 identifies a list of “common factors” which the Court may consider. Proceedings in the Court of Protection are invariably highly fact specific. It is for this reason that the common factors identified in the Practice Direction are permissive and not mandatory.


22. In my December 2022 Guidance (see para. 8 above), I identified the circumstances in which a section 49 request would ‘paradigmatically’ be made. It would be a misreading of that guidance to interpret a paradigm as if it were a rigid and unchanging template. That is not what is contemplated by the wording of section 49 nor, of course, is it what the word means (i.e., a pattern or a model). The circumstances DJ Hennessy was considering were different from those contemplated in my document, though there are some similar features. What, in my assessment of her judgment, the District Judge was seeking to achieve, was the most effective route to the most reliable evidence she could identify as likely to assist her in determining how JMC’s best interests could effectively be met.

On the facts, Hayden J considered: 

23. The District Judge came to the conclusion that the Trust had sufficiently recent knowledge of JMC to make them the focus of the enquiry. In my judgment, she was entitled, on the available evidence, to reach that conclusion and having done so, her selection of section 49 as the appropriate route is unimpeachable. The other factors discussed by Mr Fullwood such as the availability of legal aid etc., gain no traction against this factual backdrop. Indeed, logically, the availability or otherwise of legal aid should have no bearing on the selected framework for ordering a report.

He also had little truck with the argument based on N v ACCG:

 Mr Fullwood had also contended that an order under section 49, effectively triggered a direction to the Trust to provide services. A prototype of this argument was advanced before the District Judge and remodelled before me. With respect, I can see no mileage in the argument at all. Section 49 is a route by which information is acquired, it has nothing at all to do with the provision of NHS services. That would be to distort the plain words of the statute.

It is also worth noting the endorsement by Hayden J of the reasons advanced on behalf of the ALR for P as to why a s.49 report would be preferable to an expert report in the instant case: 

In this case, not only can the relevant information be provided by the relevant NHS Trust under section 49, but there are a number of reasons why such a report is more appropriate than an expert instruction, namely:
(i)     The Trust has pre-existing knowledge of JMC and has already provided two detailed reports to the court in respect of JMC and the appropriate care and treatment for him, having regard to his ARBD. The clinical guidelines in relation to the treatment of ARBD cut across both health and care and require a holistic and multi-disciplinary approach;
(ii)   The Trust promised to provide a further report to the court developing its analysis as to whether JMC’s current placement was clinically suitable, having regard to his ARBD, which was the basis on which the previous proceedings finalised. The further report never materialised and the analysis in respect of whether the placement can meet JMC’s particular needs, arising out of his ARBD, is not complete.  
(iii) The Trust is able to make recommendations in relation to local provision and interventions which it is aware of within the region;
(iv)  The Trust is able to offer a longitudinal and multi-disciplinary view regarding JMC’s needs, as opposed to an ‘snapshot’ expert assessment being taken by an individual from out of area.


As this is a decision refusing permission to appeal, it has no precedent value.  However, it did give Hayden J the chance to read into the record the material parts of his December 2022 guidance, to clarify the limits of that guidance, and to reinforce the place of s.49 reports as part of court’s armoury of tools.  

The argument based upon N v ACCG was a novel one, at least in the reported cases.  It is perhaps not surprising that it failed for the reasons identified by Hayden J.  However, it is worth noting that it is not beyond the bounds of possibility that a direction to file a s.49 report could serve as a trigger for either a health body or a local authority to consider whether it is required to provide services to a person about whom they have been previously unaware.  That the direction may have been for one purpose would not mean that the public body was not put on notice of its need to consider the person’s needs for another reason (in the same fashion – albeit not often enough recognised – that a request for a DoLS authorisation in respect of a self-funder should alert a local authority to the potential need to carrying out a needs assessment under s.9 Care Act / s.19 Social Services and Well-Being Act (Wales) 2014).