Section 49 MCA reports – letter from the Vice-President

The Vice-President of the Court of Protection, Hayden J, has published a letter (dated 16 December 2022) in relation to s.49 reports, following a meeting between him, Senior Judge Hilder and NHS Mental Health Directors.  In relevant part, it reads as follows: 

Concern had been expressed about the scope and ambit of Section 49 reports. There was a strong feeling that some of the Section 49 requests are disproportionate, overly burdensome, and wrongly authorised. 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.

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.

I have taken this opportunity to re-circulate the Practice Direction which requires no gloss or embellishment. However, I have highlighted those paragraphs which I consider need to be restated.

Changes to P&A deputyship applications from 1 January 2023 – updated (and a festive puzzle)

Posted onAuthorAlex RK

As part of the move to a new notification process will become the standard process for all Property and Affairs deputyship applications from 1 January 2023 (described here), HMCTS held a  Court of Protection drop in session on Monday 19 December 2022 to explain the new process  for making  property and affairs deputyship applications.  

recording of the session is now available to watch on the HMCTS YouTube channel.

Guidance referred to during the session can be found here:

  1. Setting up a payment by account for HMCTS online services
  2. Court of Protection forms and guidance page
  3. Information about the Court of Protection on GOV.UK

The digital submission process is planned to go live from 3rd January 2023 onwards from the main CoP page that will be updated with the process changes when they come in on 1st January.

And a festive puzzle – can you identify a coincidentally appropriate phrase from the Court of Protection Handbook on this origami flower produced by my daughter from a proof page?  No prizes, I’m afraid, just a nerdy self-congratulatory warm glow.

Changes to P&A deputyship applications from 1 January 2023

From January 2023, the new upfront notification process will become the standard process for all Property and Affairs deputyship applications, following a successful pilot. A new Practice Direction and new Court of Protection forms will be available on gov.uk (and on this site).

New Property and Affairs Deputyship applications received by the court after 1 January 2023 must follow the new notification process using the new forms.
HMCTS is phasing the release of the online service. This means:

  • the online service will be available for solicitors/professional users to use from 2 January 2023.
  • personal applicants will be able to pay and apply online from February 2023

From 1 February 2023, Property and Affairs Deputyship applications that do not follow the new upfront notification process will be returned to the applicant.

For more details, see the letter from HMCTS here.

Court of Protection Handbook – quarterly update

The first quarterly (1 November 2022) update to the Handbook is now out. It covers relevant case-law since the 4th edition was published, including litigation friends, prior convictions, ‘closed hearings,’ injunctions and the interaction between the Court of Protection and assessors under DoLS.

We should also mark in this update the departure from Legal Action Group of the driving force behind the Handbook, Esther Pilger, who has moved on to pastures new after 20 years. We will miss tremendously her energy, attention to detail and unflappable good cheer.

Remote observations of hearings: new framework

With effect from 28 June 2022, a new framework governing remote access by non-participants to proceedings was introduced by the Police, Crime, Sentencing and Courts Act 2022 – introducing new sections 85A and 85B into the Courts Act 2003 – and the Remote Observation and Recording  (Courts  and  Tribunals)  Regulations 2022

This framework – which applies to all courts and tribunals – is explained in the Practice Guidance issued by the Lord Chief Justice and the Senior President of Tribunals on 28 June 2022.  It applies whether the court is sitting in person, but enabling remote observation, or if the court is, itself, sitting remotely. In broad terms, its effect is to:

  • provide judges with the power to make directions to enable members of the public to observe proceedings remotely (by video or audio);
  • set down a series of considerations for judges to apply when deciding whether to make such a direction;
  • make it (by the Courts Act 2003 s85B) a criminal offence to make an unauthorised recording during any such remote observation.

In respect of the Court of Protection, the introduction of the new framework places matters on a clearer statutory footing than previously; whilst judges of the court had grappled with the problem of recording of remote observations (see Re TA (recording of hearings; communication with court office) [2021] EWCOP 3), they had been doing so in circumstances where the powers to prevent recording had to be derived somewhat indirectly.

It is likely that the Remote Hearings Guidance issued by the Vice-President, Hayden J, in March 2020 will be updated in due course to address the provisions of this new framework, not least as the provisions of the template order attached to that guidance now require updating to reflect that there is no need now to injunct observers from making unauthorised recordings, as this is covered by the offence under Courts Act s85B.

It should be noted that, in the Court of Protection, this new framework alongside, rather than replacing, the provisions of the Transparency Practice Direction.   The Transparency PD provides the mechanism by which the court decides whether the matter should be held in public, and subject to what limitations as to identification of P.    The new framework (and guidance) provides the mechanism by which non-participants may be given remote access to the hearing, whether that hearing is being held in person or online/by telephone. 

Judicial visits to P – new guidance

Following the case of AH, in which the Court of Appeal expressed the “pressing need” for guidance in relation to judicial visits, the Vice-President of the Court of Protection has issued guidance on 10 February about such visits. In it, he sets out principles to apply and practicalities required to give effect to those principles. He has also taken the opportunity to re-issue (and, indeed, to get onto Bailii) guidance previously issued by the former Vice-President in 2016, which covers a wider range issues relating to participation of P and vulnerable persons in the Court of Protection. The guidance can be found here.

Court of Protection Handbook Quarterly Update

The quarterly online update to the Court of Protection Handbook is now available, covering key practice and procedure updates to the text of the main volume. It includes coverage of the decision in JB – the Supreme Court takes on capacity – and of AH – judicial visits, as well as other significant developments since November 2021. We have also updated our precedent letter of instruction to an expert to report upon capacity in light of the Supreme Court’s decision in JB.

Court of Protection Quarterly Update – November 2021

The quarterly online update to the Court of Protection Handbook is now available, covering key practice and procedure updates to the text of the main volume. We are also working on publishing the update in hard copy as a one-off inter-edition bonus – work on the next edition cannot properly start until we have more detail about the revisions to the MCA Code of Practice and what is happening with the Liberty Protection Safeguards.

Court fees increase from 30 September 2021

Following the consultation on increasing selected court fees and Help with Fees income thresholds by inflation, the Government response to the consultation has been published and is available here.

The SI to effect these changes has been laid today, 6 September 2021, and the changes will come into effect on 30 September 2021. Any questions regarding this consultation response or the SI can be addressed to the Ministry of Justice Fees Policy Team (mojfeespolicy@justice.gov.uk).

The position in respect of Court of Protection fees is as follows: