Mental Capacity Act (2005) section 49 reports procedure

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 mental capacity act lead.

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

• Subject access request policy

5 Procedure or implementation

The mental capacity act office 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 mental capacity act office, noting the date of receipt, via the rdash.section-49-requests@nhs.net.

5.1 Request for section 49 report

• Requesting solicitors (requestor) should contact the trust in advance of requesting a section 49 report to agree 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.
• System checks will be undertaken, including archives, to establish what services the patient has had involvement with, if any.
• If the trust has had no previous involvement with the person, and we believe we are not the most appropriate to provide the report, the mental capacity act office will inform the requestor and close the request.
• If the person is known to the trust, the mental capacity act office will inform the requestor of the timescale for completion of the request.
• On occasion, the requestor 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.
• The requestor will issue the sealed order 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 and the timescales will be logged.
• Acknowledgement of receipt of the sealed order should be made by email as soon as possible.
• The letter of instruction or guidance may arrive with the order from the court but may also follow the order from the court. The letter of instruction or guidance will give clear instruction on what is required.
• The mental capacity act office will share the request with the list of staff who have agreed to undertake Section 49 work.
• Once a member of staff has agreed to undertake the work (author) the time scale within which the trust will complete the Section 49 Report will be confirmed and the requestor informed.
• 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).
• Copies of the order and letter of instructions or guidance should be sent to the author, along with any other background information received as part of the bundle.
• If the author is unable to complete the report within the timeframe specified within the order, the requestor must be notified immediately, and a new timeframe agreed with the requestor.
• The mental capacity act office should track and log the process of the report.
• Halfway through the timescale, the author 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 author should notify the mental capacity act office that this is the case and provide an explanation as to why this will not be met.
• In the first instance the mental capacity act office should inform the requestor of the potential delay and request an extension.
• If required, the executive medical director may need to liaise with the courts to explain the reason for the delay with the Section 49 report and negotiate an extension.
• The mental capacity act office will advise the author of any agreed extension to the deadline.

5.2 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 them.

5.3 Approval of final reports

• The report author will provide a Word e-copy of the Section 49 Report to the Mental Capacity Act Office section 49 inbox rdash.section-49-requests@nhs.net by the date requested (one week in advance of the completion date) on service headed paper and penned signature.
• The mental capacity act office will check the report against the letter of instruction or guidance to ensure the requirements of the order have been met.
• If the requirements have not been met the mental capacity act office will provide feedback to the author.
• The author should consider the feedback and make any necessary amendments to the report.
• The amended Section 49 report will be sent to the executive medical director for review before releasing the final Section 49 Report to the requesting solicitor.
• The final report, signed and encrypted, will be submitted to the requestor and a request for acknowledgement of receipt of the report requested.
• A copy of all documents released will be retained.
• The request log will then be closed, unless further information is requested.

Document control

• Version: 5.
• Unique reference number: 425.
• Approved by: Mental health legislation operational group.
• Date approved: 19 September 2024.
• Name of originator or author: Mental capacity act lead.
• Name of responsible individual: Medical director.
• Date issued: 24 October 2024.
• Review date: 31 October 2027.
• Target audience: All trust staff.

Page last reviewed: October 24, 2024
Next review due: October 24, 2025