THIS JUDGMENT WAS DELIVERED IN PRIVATE.

The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.  Failure to do so will be a contempt of court.

CASE NO: 12628437
Neutral Citation Number: [2015] EWCOP 56
IN THE court of protection

IN THE MATTER OF THE MENTAL CAPACITY ACT 2005 AND IN THE MATTER OF R S

28 August 2015
Before:

DISTRICT JUDGE BELLAMY

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B E T W E E N :

r s (BY HER LITIGATION FRIEND THE OFFICIAL SOLICITOR)

Applicant

-and-

l c c

First Respondent
A B

Second Respondent
A L

Third Respondent

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Representation:

For the Applicant: Mr J Bellamy (instructed by Switalskis)
For the First Respondent:	Mr J O’Brien (instructed by Lincolnshire
County Council)
For the Second Respondent: Mr Campbell Taylor
For the Third Respondent:	Mr Marchant of Bevan Brittan for the Lincolnshire Partnership NHS Foundation Trust

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JUDGMENT
1.	This matter concerns RS.  She is 89 years old (DOB 7/10/1925).  She has been diagnosed with vascular dementia.  She currently lives at Martin Hall Nursing Home (Martin Hall) and is the subject of a standard authorisation.  The matters before the court proceed as a challenge to the standard authorisation pursuant to Section 21A of the Mental Capacity Act 2005.  
2.	The First Respondent, Lincolnshire County Council (LCC) is the supervisory body for the standard authorisation.  The Second Respondent AB is RS’ daughter.  The Third Respondent AL is her nephew.  AB and AL are also the donees of a lasting power of attorney for welfare matters made in their favour by RS.  On 28th January 2015 upon an application made by LCC the court made orders on an interim basis that RS lacked capacity to make decisions about her residence and care and that it was in her best interests to move to live at Martin Hall.
3.	On 3rd February 2015 the court directed this matter proceed pursuant to Section 21A of the Mental Capacity Act 2005 and made directions for the filing of further evidence in respect of likely options for RS’ residence in the medium to long term.  
4.	On 20th March 2015 the court ordered a round table meeting be arranged in the hope the parties may be able to agree a way forward.  In default of any agreement the parties were to file position statements addressing:-
(a)	the continuation of the existing orders and declarations; and
(b)	what expert evidence, if any, is reasonably required to resolve the issues in the proceedings.
5.	No agreement was reached between the parties as to the way forward, there being a significant issue as to whether or not RS should return home to be subject to a care regime and additional care from AL; to live with her daughter AB in accommodation that AB would provide or remain in a nursing home either in the current location or in a location nearer to London. 
6.	On 28th May the court considered a report in respect of RS’ capacity to conduct proceedings and to make decisions in respect of her residence care and contact was necessary.  Previous interim declarations had been made by the court following consideration of the evidence from the social worker, and Dr Simon Loosmore (consultant psychiatrist).  The court was informed by AB that Dr Gonzalez (Lincolnshire Partnership NHS Foundation Trust) had recently been privately instructed to assess RS’ capacity concerning the discharge of a lasting power of attorney and had reported that RS had such capacity.
7.	In those circumstances capacity being the gateway to the jurisdiction of this court a report was ordered pursuant to Section 49 of the Mental Capacity Act 2005 and was to be filed by 10th July 2015.  The terms of the order more specifically were:-
(a)	Pursuant to the provisions of Section 49 of the Mental Capacity Act 2005 Lincolnshire Partnership NHS Foundation Trust (or such other Trust responsible for the provision of mental health services to the Applicant) shall prepare a report addressing RS’ capacity to conduct these proceedings and to make decisions of the nature specified (residence, care and contact).  The applicant’s solicitors shall notify the Trust of this order and the report shall be sent to the applicant’s solicitors by 4pm on 10th July 2015 for filing and service within these proceedings.
(b)	Lincolnshire Partnership NHS Foundation Trust (or such other Trust responsible for the provision of mental health services to the applicant) has liberty to apply within seven days of receipt of this order to set aside or vary the above direction.
8.	The matter returned to court on 29th July.  The order directing the report had not been complied with.  However as a result of enquiries made of the Trust by – the Applicant's solicitors the court were informed the Trust would be in a position to comply with the order by 13th August.
9.	On 29th July 2015 the time for compliance was extended to 13th August.
10.	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.
11.	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 Statutory Framework
12.	The heading to Section 49 of the Mental Capacity Act 2005 is “Power to Call for Reports”.  It may be helpful to set out the section in its entirety:
(1)	This section applies, where, in proceedings brought in respect of a person (P) under part 1, the court is considering a question relating to P.
(2)	The court may require a report to be made to it by the -Public Guardian or by a -Court of Protection Visitor.
(3)	The court may require a local authority or an NHS body to arrange for a report to be made:-
(a)	by one of its officers or employees; or
(b)	by such other person (other than the -Public Guardian or a - Court of Protection Visitor) as the authority, or the NHS body, considers appropriate.
(4)	The report must deal with such matters relating to P as the court may direct.
(5)	The Court of Protection Rules may specify matters which unless the court directs otherwise must also be dealt with in the report.
(6)	The report may be made in writing or orally, as the court may direct.
(7)	In complying with a requirement, the - Public Guardian or a Court of Protection Visitor may, at all reasonable times, examine and take copies of:-
(a)	any health record;
(b)	any record of, or held by, a local authority and compiled in connection with a social services function; and
(c)	any record held by a person registered under part 2 of the Care Standards Act 2000 or chapter 2 of part 1 of the Health and Social Care Act 2008, so far as the record relates to P.
(8)	If the -Public Guardian or a Court of Protection Visitor is making a visit in the course of complying with a requirement, he may interview P in private.
(9)	If a -Court of Protection Visitor who is a special visitor is making a visit in the course of complying with a requirement, he may if the court so directs carry out in private a medical, psychiatric or psychological examination of P’s capacity and condition.
(10)	NHS body has the meaning given in Section 148 of the Health and Social Care (Community Health and Standards) Act 2003.
(11)	Requirement means a requirement imposed under sub-Section 2 or 3. 
13.	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).
14.	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.
15.	The Rule goes on to set out helpful indications as to how the report maker should proceed and deal with disclosure of documentation to the author of the report.  
16.	Practice Direction 14E deals with the form of order for a Section 49 Report and helpfully sets out at paragraph 6 onwards the procedure to be adopted by a local authority or NHS body.  At paragraph 11 onwards it sets out the contents of the report and a proposed format. 
17.	 Finally it is also relevant that I refer to Rule 85(2) and in particular 85(2)(a) when giving directions, the court may do any of the following - require a report under Section 49 of the Act and give directions as to any such report.
18.	The report  obtained by AB in respect of the ability or otherwise of RS to deal with her existing LPA stated 
“Therefore, I certify that RS has, in my opinion, the necessary mental capacity to decide matters concerning her health care and to administer her own financial affairs or to grant power of attorney to do this for her – in this case she wishes to appoint her daughter AB”.  
In my judgment in all the circumstances of this case and the issues to be determined clarification by an expert of RS’ mental capacity was reasonably required and indeed it was necessary in light of the conclusions of the psychiatrist.  Furthermore, at the time of the order in May it appeared that a report commissioned from the relevant Trust pursuant to Section 49 would be the most expedient and proportionate way of proceeding.
The Trust’s Position 
19.	The Trust advanced ten reasons to support their view that it was inappropriate for the required evidence to be obtained by way of Section 49.  They were:-
(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.
20.	At the hearing Mr Marchant on behalf of the Trust expanded upon those areas of objection.
Position of the Remaining Parties
LCC
21.	A position statement had helpfully been prepared by Mr O’Brien for LCC.  Mr O’Brien pointed out that in the drafting of Section 49 no distinction was drawn between those patients for whom there already existed a clinical responsibility or those who were in terms unknown to the Trust.  Whilst LCC was sympathetic to the argument put forward by the Trust and its consequences if a Section 49 Report was ordered  nonetheless the court was doing no more than giving effect to the plain meaning of Section 49.  LCC could not see any difficulty in a different psychiatrist employed by the Trust preparing a report which may or may not reach a different conclusion as to capacity from that expressed in the brief report of Dr Gonzalez.  For those reasons Dr Gonzalez since he had already expressed an opinion on behalf of one of the parties to these proceedings would not be an appropriate expert to carry out the report.
22.	For AL Mr Campbell Taylor expressed a similar view but on behalf of his client would not object to an instruction to Dr Gonzalez or indeed the instruction of a special visitor. He expressed concern over the delay in determining the issue of capacity, and his client would have no objection to Dr Gonzalez being instructed to complete the section 49 report there being in his submission no potential conflict of interest.
23.	On behalf of RS, Mr Bellamy agreed with the submissions of LCC, saw a difficulty in the appointment of Dr Gonzalez and wished the court to maintain its instruction to the Trust in order to obviate any further delay and to resolve the issue of capacity as quickly as possible. Enquiries made revealed that if a report was to be commissioned from an independent expert [as opposed to Section 49] such report could not be obtained for several months.
Discussion
24.	It is regrettable that despite being first notified of the terms of this order by 18th June an application to vary was not made until 31st July and that was after an assurance had been given to the court that a report would be prepared by 13th August.  Whilst reasons have been given namely that the Trust were endeavouring to comply with the order and endeavouring to find a consultant psychiatrist who could have the time to prepare and complete his report, the effect of the delay has meant that over two months has been lost in the preparation of capacity evidence which is of course key to this court’s jurisdiction.  Against that this court recognises that the request for Section 49 Reports place an additional burden upon the NHS and Trusts and the court is always mindful of not only allowing a reasonable time for the preparation of such reports but allowing time for any variation to be sought.
25.	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.
26.	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. 
27.	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.  

Dated this     day of                2015
…………………………………………..
DISTRICT JUDGE BELLAMY