Contents
1 Background
Under section 49 of the MCA, the Court of Protection can order reports from NHS health bodies and local authorities when it is considering any question relating to someone who may lack capacity. An order under section 49 places an obligation on the NHS to comply, although it is up to the trust to determine the appropriate person to complete the report. There is no right to charge for the preparation of the report.
2 Aim
The purpose of this standard operating procedure is to set out a clear process within the trust for receiving and processing Mental Capacity Act 2005 (MCA) section 49 report requests.
All requests should be received by or redirected to the executive medical director.
3 Scope
This standard operating procedure applies to all staff working within the trust, whether employed by the trust or not, who are involved in handling patient, service user and staff personal information.
4 Link to overarching policy, and or procedure
5 Procedure or implementation
The executive medical director will act as the single point of access for requests for section 49 reports within the trust. All requests should be forwarded to rdash.section-49-requests@nhs.net.
Should any staff member receive any communication from solicitors in relation to a request for a section 49 report they should immediately inform the executive medical director, noting the date of receipt, via the rdash.section-49-requests@nhs.net.
5.1 Request for section 49 report
- Requesting solicitors should contact the trust in advance of requesting a section 49 report to discuss the requirements and discuss a timescale for the completion of the report (generally this is 8 weeks) from the date of receipt by the trust. This may be by phone or email.
- The requesting solicitor will then issue a draft letter of instruction and draft order (unsealed, but which is binding) to the trust.
- On receipt of the draft letter of instruction and draft order an acknowledgement of receipt of the request will be made in writing.
5.2 Logging and processing the request
- The request will be logged and the overall trust response to the request for a section 49 report will be coordinated.
- System checks will be undertaken, including archives, to establish what services the patient has had involvement with, if any.
- The request, along with the above information, will then be shared with the executive medical director who will:
- assess who the most appropriate person is to complete the section 49 report
- identify the time scale within which the trust will complete the section 49 report
- inform the requestor of non-engagement and close the request
- Within 7 days of the date of receipt, notification to the requesting solicitor will be made in writing, of the timescale within which the trust will complete the section 49 report.
- The section 49 report request will be allocated to that staff member along with the timescale for the completion of the section 49 report (1 week in advance of the completion date).
5.3 Order from the court and letter of instruction
- The sealed order from the court will be issued to the trust which will outline the requirements for the section 49 report and will provide the timescale within which the trust must comply with providing the section 49 report to the court.
- Receipt of the sealed order will be logged.
- The author will be notified of the receipt of the signed order including any amendments.
- The letter of instruction may arrive with the order from the court but may follow the order from the court. The Letter of Instruction will give clear instruction on what is required.
- Copies of the order and letter of instruction should be sent to the author, along with any other background information received as part of the bundle.
5.4 Seeking guidance
- On occasion it may be appropriate to seek advice on the request being made from the court from the trust solicitors. Advice in these circumstances will be at the instruction of the executive medical director and any such requests should be discussed directly with him.
5.5 Halfway check-in
- Halfway through the timescale, the allocated staff member will be contacted to ascertain if the section 49 report is on track for the completion date.
- In circumstances where the completion date will not be met, the allocated staff member should notify that this is the case and provide an explanation as to why the timescale will not be met.
- The executive medical director will discuss with the allocated staff member and where appropriate liaise with the courts over any potential delays with the section 49 reports and advise the allocated staff member of any extensions to deadlines.
5.6 Approval of final reports
- The report author will provide a word e-copy of the section 49 report to the executive medical director by the date requested (one week in advance of the completion date) on service headed paper and penned signature.
- The executive medical director will review the section 49 report before releasing the final section 49 report to the requesting solicitor.
- A copy of all documents released will be retained.
- The request log will then be closed.
Document control
- Version: 4.
- Unique reference number: 425.
- Approved by: Mental health legislation operational group.
- Date approved: 25 November 2021.
- Name of originator or author: Mental health act manager.
- Name of responsible individual: Mental health legislation operational group.
- Date issued: 10 December 2021.
- Review date: November 2024.
- Target audience: All trust staff.
Page last reviewed: March 25, 2024
Next review due: March 25, 2025