The Court of Protection published updated guidance on judicial visits to protected parties in contested cases on 10 February 2022. The guidance sets out practical considerations such as how to assist the judge to decide whether a visit to “P” (the initial the court uses to refer to the person the proceedings are about) is required, how to facilitate a visit, how to facilitate communication with P, who should attend and who will take a note. Jemma Goddard reviews the guidance.
The guidance handed down by Mr Justice Hayden in Judicial Visits to ‘P’  EWCOP 5 is intended to supplement the guidance issued by Mr Justice Charles as Vice President of the Court of Protection on 14 November 2016. As such, that previous guidance has been reissued.
It is important to note that while both sets of guidance are aimed primarily at health and welfare cases, both Mr Justice Hayden and Mr Justice Charles state that their guidance will also provide some assistance in property and affairs cases.
A case study
Issues of purpose and procedure are of particular importance in cases concerning the continuation of life-sustaining treatment, as noted by the Court of Appeal in Re AH (Serious Medical Treatment)  EWCA Civ 1768. It was this judgment that led to the recent guidance of Mr Justice Hayden, who had presided over the first instance hearing of the case.
The case’s timeline is interesting and highlights the need to follow proper procedure, as has now been emphasised by Mr Justice Hayden. At first instance, in Cambridge University Hospitals NHS Foundation Trust v AH & Ors  EWCOP 51 (3 September 2021), Mr Justice Hayden ordered that life-sustaining ventilatory support should be withdrawn. The protected party, AH, was described as “the most complex Covid patient in the world”.
The unanimous evidence of the professionals involved in AH’s care indicated that treatment was extremely painful, and it would not have been in AH’s best interests for it to continue. AH’s doctor was clear in his evidence that AH was dying. Mr Justice Hayden ordered that treatment should be withdrawn by the end of October 2021, by which time it was hoped AH’s daughter could travel to the UK to be with her. He also ordered that AH should be moved from the hospital to a calm, quiet and private place.
AH’s children appealed. By the time of the hearing, five grounds of appeal had been set out. The first four grounds focused on Mr Justice Hayden’s alleged failure to give sufficient consideration to:
- an earlier indication by AH that she wished to receive “full escalation” of treatment,
- the importance to AH of her religious and cultural views in relation to the withdrawal of medical treatment,
- AH’s past and present wishes and feelings, and
- a failure to properly balance the interference with AH’s human rights.
On these first four grounds, the appeal failed.
The appeal succeeded, however, on a fifth ground: that a judicial visit by Mr Justice Hayden to AH after the conclusion of the hearing (but before judgment) had been wrongly used as an “evidence gathering exercise to establish what AH’s views were” and this “likely influenced his overall conclusions”. The Court of Appeal also found that this visit rendered the decision procedurally unfair because the parties were neither given notice nor an opportunity to make submissions in respect of it.
The visit was attended by Mr Justice Hayden and a representative of the Official Solicitor, who had been appointed as litigation friend for AH. A detailed note had been prepared. The note indicated that AH appeared to be distressed and was crying. During the visit, Mr Justice Hayden was quoted as having said, “I think it may be that you want some peace,” and “It is not easy for you to communicate, but I think I am getting the message”.
The concept of AH having wanted peace was a feature of Mr Justice Hayden’s judgment. AH’s children contended that Mr Justice Hayden was not entitled to draw conclusions from his interaction with AH, whose ability to communicate was severely limited. Furthermore, they argued that this approach was procedurally unfair as the purpose of the visit had not been determined in advance, and AH’s children had no opportunity to make submissions on Mr Justice Hayden’s findings. Handing down judgment in the Court of Appeal, Lord Justice Moylan “very regrettably” agreed and required a rehearing of the case to take place as soon as possible.
When the case was reheard by Mrs Justice Theis in Cambridge University Hospitals NHS Foundation Trust v AH  EWCOP 64 (13 December 2021), she too concluded that life-sustaining treatment should be withdrawn.
Call for further guidance
In their judgments in the Court of Appeal, both Lord Justice Moylan and Sir Andrew McFarlane, President of the Court of Protection, called for further guidance on judicial visits in contested proceedings.
Mr Justice Hayden’s resulting guidance, which reissues the previous 2016 guidance, stresses the need to be clear with the parties and the court about the intended purpose of any judicial visit. One possible purpose might be to facilitate the participation of P in ‘best interests’ decision making, as required by s.4(4) Mental Capacity Act 2005, which provides:
“He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.”
This is not the same as visiting P for the purpose of formal evidence gathering. The visit may, however, serve to further highlight aspects of the evidence the judge has already heard, either from experts or family members, and it may lead the judge to make further enquiries. In turn, the reissued guidance from 2016 makes clear that is the responsibility of those representing P to elicit P’s wishes and feelings about the issues before the court. It is a different scenario again where P is competent to give evidence themselves in a fact-finding process, and the guidance does not apply in such cases.
Importantly, where the judge considers that information from or the experience of visiting P may have had or might be perceived to have influenced the ‘best interests’ decision, the judge must communicate that to the parties and, where appropriate, invite further submissions.
While the stakes might be “less high” when ensuring proper procedure is followed outside of cases concerning life-sustaining treatment, both sets of guidance can be applied in all cases. It is clearly in the interests of the court, the parties and P to ensure judgments are not overturned, or an unfair conclusion is arrived at by reason of procedural failings. It is primarily the responsibility of the judge to decide whether a visit would be appropriate and ensure proper procedure is followed, but the parties are encouraged by the guidance to assist in the process.
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