Under section 49 of the Mental Capacity Act 2005 (the “MCA”), the Court of Protection (the “CoP”) may require NHS health bodies and local authorities to arrange for a report to be made for the purpose of considering any question relating to someone who may lack capacity. Producing a report is a complex process involving assessing the patient, reviewing notes, discussing with relevant professionals and compiling information. The amount of time required to review a long and complex set of medical records presented can be significant.

The definition of ‘NHS body’ does not include GP practices, even if their contractor (ICB) is.

Therefore, practices cannot be directly ordered by the Court of Protection to produce a report under section 49.

Although it is possible for an NHS body (e.g. an NHS Trust) that had been ordered to arrange for a report to be made to request that someone else produce a report (under section 49(3)), e.g. a GP - in doing so, the trust cannot compel a GP as an independent practitioner to do the work and if the GP agrees to do the work, he/she is entitled to be paid a rate agreeable to the GP.

Read more in this guidance by the BMA’s Medico Legal Committee