The Court of Protection gives guidance on the application and scope of section 49 Mental Capacity Act 2005 in Cheshire and Wirral Partnership NHS Foundation Trust v JMC & Anor [2023] EWCOP 14.

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

1. Section 49 of the MCA conveys upon the Court a broad discretion, when deciding to request a report, and in respect of the scope of it. Whilst such direction is not be regarded as unfettered, there will always require a ‘broad margin of discretion in eliciting information it considers necessary to illuminate the question in focus’;
2. The court must have regarding to Practice Direction 14E and the “common factors” at paragraph 3, which are ‘permissive and not mandatory’, having regard to the highly fact specific nature of Court of Protection proceedings;
3. Section 49 is a case management power, and the circumstances in which an Appellate Court will intervene on a case management decision are to be regarded as ‘very rare indeed’.

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)