Don’t get too excited, this power only works in Court of Protection cases. But it is still pretty cool. [Unless you work for an NHS Trust, in which case this power is soul-crushingly awful.]
Re RS 2015
In this case, there was an application for authorisation of a deprivation of liberty. The Court directed (on 28th May) that the NHS Trust should prepare a report on capacity. Days went by, with no report, then weeks, then two months.
And then this:-
- On 31st July by direct email, the court received a letter on behalf of Lincolnshire Partnership NHS Foundation Trust which, notwithstanding the order of 28th May and the assurance given via LCC to the court on 29th July advised that it was impossible to comply with the order and further that it was inappropriate for the evidence sought to be obtained by way of an order pursuant to Section 49 of the Mental Capacity Act 2005.
- In light of this letter, which I treated, albeit exceedingly late, as an application as provided for in the order of 28th May to set aside or vary the original order.
The Trust set out their arguments as to why it was not right that they should prepare a report – in part because taking a doctor away from patients to write a report on someone they barely knew was not terribly in keeping with their job of looking after patients, especially where there was no fee for the report to offset the costs of doing it.
(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.(2) 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.
(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.
(4) 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.
(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.
(6) The request was a publicly funded body into proceedings of which it has no involvement.
(7) Complying with the request places a significant and disproportionate burden on limited NHS resources.
(8) A consultant would need to cancel clinics to make time to prepare the report; putting vulnerable patients at risk.
(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.
(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.
The Trust position was therefore that capacity evidence should be facilitated through the instruction of an independent jointly instructed expert and not through Section 49.
Can’t this be resolved just by paying a fee?
No, the Code of Practice specifically says that there IS no fee payable for a report ordered under s49.
- There are a number of notes to Section 49 contained within the Court of Protection Practice 2015. Specifically one of the notes states
Fees – there is no provision for fees to be charged for any report requested by the court.
Reference is also made in the notes to the Court of Protection Rules and in particular Rules 117 and 118 and Practice Direction E (PD14E).
- I do not propose to set out Rule 117 in full but will refer to:
(1) this Rule applies where the court requires a report to be made to it under Section 49 of the Act;(2) it is the duty of the person who is required to make the report to help the court on the matters within his expertise.
What did the Judge have to say about the Trusts’s arguments?
- In relation to the specific submissions on behalf of the Trust then I will deal with these briefly:
(1) While I note the argument there is no such distinction 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.(2) 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 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.
(4) 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) 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 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) 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.
(8) While this is noted the answer to 7 would seem to cover this.
(9) I have already dealt with this in 7 above.
(10) 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.
- It follows, for the reasons given above I am not prepared to vary or alter the principle behind the original order of 28th May. However 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.
- Finally, this is a difficult and recurring problem and brings into sharp focus the burden upon any Trust or NHS body to comply with such direction while at the same time maintaining the provision of its service to existing patients. The cost of the report is also funded by the Trust. There is no provision within Section 49 for the court to order payment of fees or expenses in that regard. These are matters that ultimately may have to be considered elsewhere. In line with the President’s guidance I propose to publish a suitably anonymised version of this judgment on Bailii.
In short, you might, as the Trust, be able to plead extenuating circumstances and time pressures and get longer to DO the report, but you have to ask the Court and do so in good time, but you aren’t going to get out of doing it.
If you are an NHS accountant /manager/ worker / taxpayer who feels miserable about this, read this fun case where a Husband in divorce proceedings who is claiming that he has no assets at all (due to them all being put into a in a Trust which has subsequently kicked him out and taken them all) also struggles to explain to a Court why he has at the same time entered into an agreement to buy a private jet plane and put a deposit down yet is completely unworried about his ability to pay for the rest of it given that he has no assets, no income and no job. His courageous answer is, in effect “I’m such a great businessman, I can make it work”
While on the topic of aircraft, I should mention that H shows as an illiquid asset US$250,000 which he has paid as a deposit against the much delayed delivery of a Honda Jet. The balance of the purchase price is US$4m. H expressed no anxiety in his current parlous circumstances (another global economic meltdown apart) in coping with this liability when it falls due. In evidence he said that the latest estimated delivery date was probably the first or second quarter of 2016, and that he had “set up a multi-billion dollar empire with very little capital. It is a question of leverage and investing partners.” Asked whether he regarded operating a single jet as a viable source of income and livelihood he was optimistic describing it as “a big growth area of business especially if you have the latest jet technology.”
I don’t know about my readers, but if I had no money in the bank, no income and no job, and for some reason, I had to pay $3.75million for a jet plane in the next year, I’d probably be on the phone to the plane company explaining how, “yeah, it turns out maybe I don’t need the plane so much after all, can I take a rain-check on that? Also, could I get my deposit back?”
Note that he also has / or rather had because the Trust, which is not run at all by one of his former friends as a complete device to escape his wife’s financial claims oh no, a fleet of luxury cars including cough “A Ferrari that cost $8.5 million”
“Their position is an elaborate charade, the stage management of which has been conducted ruthlessly and without regard to cost”
“There is a clear distinction between the question whether a trust can be characterised as sham (which was, as rightly stated, not asserted at the hearing), and the conclusion which I reached that the case collusively advanced by H and TB was a rotten edifice founded on concealment and misrepresentation and therefore a sham, a charade, bogus, spurious and contrived. I do not shrink from applying to it the description fraud, a deliberate design to deceive, inflicted on W and on the court, and found by the court so to be”