VT v NHS Cambridgeshire And Peterborough Integrated Care Board
[2024] EWHC 294 (Fam)
Cheshire and Wirral Partnership NHS Foundation Trust v JMC & Anor
20 April 2023
[2023] EWCOP 14
Court of Protection
A judge ordered a report from a hospital about a man who's been in a care home. The hospital appealed, but another judge said the first judge was right to ask for the report because they had recent information about the man that's helpful to make a decision about his care.
Key Facts
- •JMC, a 72-year-old man with alcohol-related brain damage (ARBD) and dementia, is deprived of his liberty.
- •Previous proceedings involved reports from Professor Wilson recommending a more suitable placement for JMC than his current nursing home.
- •A promised further report from Professor Wilson was never produced.
- •Concerns have been raised about JMC's deteriorating condition and self-neglect.
- •The District Judge ordered a Section 49 report from the Cheshire and Wirral Partnership NHS Foundation Trust.
- •The Trust appeals this order, arguing it falls outside the scope of Section 49 of the Mental Capacity Act 2005.
Legal Principles
Section 49 of the Mental Capacity Act 2005 allows the court to require reports from NHS bodies on matters relating to P.
Mental Capacity Act 2005, Section 49
The court has a broad discretion in deciding to request a report and its scope, but this discretion is not unfettered and must relate directly to P.
Case Law (implied)
Practice Direction 14E provides common factors the court may consider when ordering a Section 49 report, which are permissive, not mandatory.
Practice Direction 14E, paragraph 3
An appeal against a case management decision will only succeed if the judge erred in principle, considered irrelevant matters, failed to consider relevant matters, or came to a decision so plainly wrong it is outside the ambit of their discretion.
Case Law (Re TG)
A Section 49 order is for acquiring information, not for directing the provision of NHS services.
Case Law (implied)
The court must act in accordance with the overriding objective and Practice Direction 14E when exercising its discretion under Section 49.
Case Law (implied)
Outcomes
Permission to appeal was refused.
The District Judge was entitled to order a Section 49 report from the Trust given their recent knowledge of JMC and the need for information to inform a best interests decision. The appeal lacked a real prospect of success.