Author: aruckkeene

Section 49 Pilot explained

The section 49 Pilot Practice Direction has been published to come into effect in June 2016 (but unlike the Case Management Pilot Practice Direction, published for information only).  The Practice Direction applies both to orders made under s.49 MCA by the COP of its own motion and – more importantly – to orders sought by parties.  The Practice Direction is accompanied by a draft order.   It recognises, in essence, that s.49 reports are an extremely important part of the COP’s armoury when it comes to information gathering, but that they must be deployed:

  1. Carefully, so as to ensure that they are targeted to public bodies actually able to provide useful information;
  2.  With suitable thought and preparation on the basis that, to be effective, they are best approached as if they were expert reports.

An important innovation is the requirement, where possible, for a party seeking a s.49 report from a NHS body or local authority to have made contact prior to the application being heard by the court to identify an appropriate person (“a senior officer”) able to receive the order, and to have discussed with the body the reasonableness and time scales for providing the report.   Although it does not prescribe when a court will and will not order one, the Practice Direction set out (at paragraph 3) common factors that the court may consider when deciding whether to order a s.49 report, including:

  • where P objects to the substantive application or wishes to be heard by the court and does not qualify for legal aid;
  • where it has not been possible to appoint a litigation friend or [under the new numbering] rule 1.2 representative, including where the court has made a direction under rule 1.2(5);
  • where a party is a litigant in person and does not qualify for legal aid;
  • where the public body has recent knowledge of P; or it is reasonably expected that they have recent knowledge of P; or should have knowledge due to their statutory responsibilities under housing, social and/or health care legislation;
  • the role of the public body is likely to be relevant to the decisions which the court will be asked to make;
  • the application relates to an attorney or deputy and involves the exercise of the functions of the Public Guardian; and
  • evidence before the court does not adequately confirm the position regarding P’s capacity or where it is borderline; or if information is required to inform any best interests decision to be made in relation to P by the court.
  • An unofficial draft version of the template s.49 order in Word form is to be found here.

[Note: a version of this originally appeared in the March 2016 39 Essex Chambers Mental Capacity Law Newsletter.  Alex as a member of the ad hoc Rules Committee has been involved in developing the Pilot. This note does not, however, represent an official comment on behalf of the Rules Committee.]

 

Court of Protection Handbook Second Edition – your chance to make a difference

We are setting the wheels in motion to produce a second edition of the Court of Protection Handbook by the end of the year.   We think we know what we need to cover – not least all the exciting developments such as the Case Management Pilot – but we would very much like to hear from you with suggestions of what we need to make sure we add (or conversely, what we can lose).   All answers on an electronic postcard please to courtofprotectionhandbook@gmail.com.

Case Management Pilot Draft published

The long-awaited case management pilot has now been published in draft form for comment and consideration before it goes live in June of this year. There will be more analysis of it and of its implications in next month’s Mental Capacity Law Newsletter, but and very brief terms of pilot envisages very clear pathways for health and welfare cases, property and affairs cases, and mixed cases.

In all cases, the pilot Case Management Direction will place an obligation on applicants to provide improved analysis of the issues at the start of a case, allowing for more robust case management decisions to be taken at the outset and all issues to be identified at the earliest opportunity in proceedings. It will also seek to encourage early resolution of cases, to reduce the number and length of hearings required in contested cases and to promote judicial continuity. The pilot is expected to run for up to 12 months.

Separately, and also to start in June, a pilot has been published to tighten up the  relating to s.49 reports. The pilot aims to ensure that such reports from public bodies are attained in a proportionate, targeted and, above all, useful fashion.  

Transparency guidance on anonymisation updated

Following feedback that the procedure being adopted to ensure that parties were anonymised was perhaps a little too over-zealous, new guidance has been issued.   If further issues such as these are identified, the guidance accompanying the pilot will no doubt be subject to further amendment in due course as all those involved continue to find their feet.

[Update 25 February, this guidance is going to be further updated in light of an ambiguity brought to the attention of the relevant authorities so we have removed the link for the time being]

Transparency – it’s all go

The Transparency Pilot that we have covered previously is now finalised and will be starting on 29 January (NB, this means that the first pilot order can be made on 29 January providing for a hearing to be held in public subject to reporting restrictions, not that the first hearing will necessarily be on that date).    The Practice Direction and the standard “pilot” order can be found here, and the – helpful – guidance note for the judiciary written by the Vice-President of the Court of Protection can be found here.

The Pilot will be running for 6 months.   It is very important that practitioners understand that if they wish their case to proceed in private, it is necessary to apply at the earliest possible opportunity and before any pilot order is made – if they apply after the order has been made, then it will be necessary to give notice of any application to vary the order to the national media by using the Press Association’s Injunctions Alert service (formerly known as CoPyDirect).

As the Vice-President, Charles J, notes in his guidance note, the aim of the pilot is to effectively reverse the existing default position of private hearings.  This means that there will have to be a good reason for not making an order that an attended hearing is to be in public including an anonymity order in terms of or based on the standard order.

 

St George’s and the powers of the court

Newton J has very recently authorised the publication of the order he made in St George’s Healthcare NHS Trust v P & Q [2015] EWCOP 42 (discussed here).  The order makes clear what we had suspected must have been the case (but was made inadvertently ambiguous in the judgment), namely that he did not order the Trust to continue providing P with renal replacement therapy; rather he declared that it was lawful (being in his best interests) for him to continue receiving it.   Had he ordered the Trust to continue providing such treatment, that would have represented a very significant step over the well-respected dividing line between the roles of the court and clinicians.

We’ve come over all pink – the revised 1st edition of the COPH now out!

We are delighted to announce that a revised first edition of the Court of Protection Handbook is now available, in a frisky pink.  It contains the Court of Protection Rules as amended by the 2015 changes, updated precedent orders, and supplementary commentary highlighting the key changes brought about the 2015 rules changes.   It is available from the LAG bookshop, for £55.

For those of you who already own the book, you can get a supplement – free! – including all the new material, by emailing lag@lag.org.uk.   There are also a limited number of free copies of the supplement available to all comers at the same email address.

Do also remember to visit the COPH website for updates to the main body of the book and all sorts of useful other material such as downloadable (free) Word versions of precedent orders and PDs that are actually locatable (by contrast with the position on the .gov website).

Section 49 reports – the thorny issues

Summary

Somewhat surprisingly, the question of the responsibility of NHS bodies/local authorities to provide s.49 MCA reports at no cost to the parties has not been the subject of a reported judgment until now (although I am aware of both unreported judgments and observations expressed by judges in the course of hearings).     In RS v LCC & Ors [2015] EWCOP 56, District Judge Bellamy has now stepped into the breach, although, as he noted, the difficult questions arising the provision of s.49 reports and their consequences for public bodies may ultimately have to be considered elsewhere.

The detailed facts of the case are not relevant. Suffice it to say to say that, during the course of a s.21A application, the court required a s.49 report to be provided by the mental health Trust responsible for P, addressing her capacity “as the gateway to the jurisdiction of the court.”   The relevant NHS Trust declined to provide the report, both on the basis that it was impossible to provide it, and – more fundamentally – that it was inappropriate for the evidence sought to be provided by way of an order under s.49.    The Trust’s objections were both specific to the nature of the evidence sought and more generally directed to the application of s.49 in respect of individuals for whom they already had a clinical responsibility.   The Trust advanced 10 reasons to support their view that it was inappropriate for the required evidence to be obtained by way of Section 49.    As District Judge Bellamy then addressed each of these reasons in turn, it is convenient to set out each of the objections together with his conclusions on each point in turn:

(1)  The Trust has no clinical involvement or knowledge of P (other than the information contained in the applicant’s enclosed letter). P is not a patient under the Mental Health Services of the Trust.

Conclusion: While I note the argument there is no such distinction [i.e. between patients and non-patients] drawn within the powers given in Section 49 and the accompanying Rules or Practice Direction. In my view it would be wrong for the court to undertake such distinction either in the preparation of its orders generally or in this order in particular.

There appears to be a clear dispute on capacity the outcome of which may have a significant impact on P’s future care and welfare. Such a dispute should properly be resolved by way of a jointly instructed independent court expert. It is not appropriate to seek quasi expert evidence through Section 49.

Conclusion: The dispute as to capacity has arisen following a report from a consultant psychiatrist dealing with matters pertaining to a lasting power of attorney. There is an existing assessment by a consultant psychiatrist Dr Loosmore and a very experienced social worker. A question has therefore arisen in relation to RS as to the extent or otherwise of her capacity. It is a matter well suited for determination by Section 49 which is a proportionate response as opposed to an instruction to an independent expert. Such direction would have additional funding and cost consequences particularly in the instant case where three of the parties are either publicly funded or public bodies and the fourth is privately paying albeit acting in person. Furthermore a Section 49 Report would [or should at any rate] incur significantly less delay.

(3)  A Section 49 Report is not a joint instruction and therefore can potentially leave open a dispute in the event that the evidence is not accepted by all parties. We understand that the first Respondent was not in agreement that Section 49 is appropriate.

Conclusion: A Section 49 Report is a direction of the court. If a letter of instruction cannot be agreed the court will deal with any such dispute. It was the court’s direction and not that of any specific party.

The Trust’s consultants are not court experts: they do not have the expertise in preparation of Medico Legal reports and should not be expected to do so, particularly where it is not in connection with a patient under their care.

Conclusion: The Rules and in particular the Practice Direction are clear as to the contents and format of a report. If that format is followed specific medico legal experience is not required. However, given the significant growth in the volume of work undertaken by the Court of Protection and in particular Section 21A or related challenges, it is no doubt a level of expertise that all consultant psychiatrists particularly dealing with the elderly will acquire if they have not already done so.

(5) We understand a report in the proceedings has been prepared on a private instruction by Dr Gonzalez (of the Trust). There is a potential conflict of interests in seeking a further report from a consultant of the Trust.

Conclusion: The court can see no potential conflict of interest in another consultant of the Trust preparing a report. Again the duty of the author of the report is fully set out in the Rules and Practice Direction.

(6) The request was a publicly funded body into proceedings of which it has no involvement.

Conclusion: The provisions of Section 49 are clear. There is a wide range in power to direct a report from an NHS body as the court considers appropriate. It is common for Section 49 Reports to be directed in this way.

(7) Complying with the request places a significant and disproportionate burden on limited NHS resources.

Conclusion: The court has sympathy with the effect of its order upon the Trust. However as is noted earlier no provision is made within Section 49 in relation to fees or expenses incurred by the author of the report (be it NHS body, Trust or otherwise). What the court will do is to carefully consider resources and listen to any argument from the Trust particularly in relation to the time for compliance and the scope of the work to be undertaken. That would appear to be both a reasonable and proportionate approach.

A consultant would need to cancel clinics to make time to prepare the report; putting vulnerable patients at risk.

Conclusion: While this is noted the answer to 7 would seem to cover this.

(9) There is no provision for costs of the report in order to enable the Trust to employ locum cover for the report author. The Trust is already under significant pressure to reduce its locum cover:

Conclusion:  I have already dealt with this in 7 above.

(10) Even where locum cover can be sourced this can be detrimental to patients if they are not able to see their usual consultant with whom they have built a trusting professional relationship. Consistency of care is an important factor in mental health care and should be maintained wherever possible.

Conclusion: As stated above every effort will be made to accommodate the preparation and extent of the report so as to limit wherever possible the disruption in healthcare provided by a consultant to his patients.

District Judge Bellamy therefore declined to vary or alter the principle behind the original order directing the s.49 report, although he noted that: “it must be right that compliance with any order is subject to reasonable adjustment on application by the Trust in relation to the scope and extent of any report ordered and the time for compliance. However such applications must be made promptly and supported by evidence on behalf of the Trust or NHS body.”

Comment

On the very specific facts of this case, an immediate question comes to my mind as to why District Judge Bellamy did not seek a report (under s.49) from a Special Visitor.   If the issue to be addressed was that of P’s capacity, and the court felt that it needed independent expertise in order, the obvious route to obtain that evidence is undoubtedly that provided for by the Special Visitor route.   There may well have been reasons not apparent on the face of the judgment why such a course was not open to him, and, if so, then the course adopted would appear to have been both proportionate and reasonable.  The conclusion that a public body cannot seek to recoup the costs of preparation of such a report is also undoubtedly correct.

The case, though, does raise a wider point about the importance of s.49 reports that may be at risk of being lost in the (understandable) concerns expressed by public bodies as to the time and resources that may be required where they are directed to provide such reports.   The Court of Protection is a strange beast. It is regularly said to be inquisitorial in its jurisdiction: see, e.g. Re G [2014] EWCOP 1361 at paragraph 26. However, by comparison with the Family Division/Family Court, which is also said to discharge an inquisitorial jurisdiction, the Court is strangely underpowered – there is, in particular, no equivalent to a children’s guardian (whether a consequence is that the role of litigation friend in the COP is being distorted is something I am working on at present).   If COP judges are to be put in a position where they are able properly to assess the questions of P’s capacity and best interests, it is crucial that they are, themselves, able to identify and call for such evidence as they see fit.  Section 49 is therefore vital, both as regards the ability to call for reports from (Special) Visitors and for evidence from NHS bodies/local authorities.   There is undoubtedly a price to be paid in consequence by such bodies, but, societally, it is a small one to pay for the proper determination of such cases.