The Court of Appeal has considered the question of whether it is fair and appropriate for a Court of Protection Judge to visit the person who lacks mental capacity and about whom the Judge is being asked to make a best interest’s decision.
In the case of Re AH (2021) Mr Justice Hayden, who is a High Court Judge and the Vice President of the Court of Protection, visited AH in hospital after the hearing had concluded and before giving judgment.
I have heard Mr Justice Hayden speak on several occasions about just how important he considers it is for him to meet with the person about whom he is being asked to make a decision, so that he can be sure he fully understands their circumstances.
AH was a 56-year-old woman who is said to be ‘the most complex Covid patient in the world’. She contracted COVID-19 in December 2020 and was admitted to hospital. Her condition deteriorated and she developed a severe inflammatory response, which led to profound neurological complications and extensive damage to her brain, nerves and muscles. AH was ventilated and able to communicate to a very limited degree, by moving her head, eyes and lips; she was in a minimally conscious state.
The NHS Trust sought an order that it was not in AH’s best interests for ventilatory treatment to continue. It was agreed by all parties that AH lacked capacity to make decisions in respect of her treatment.
After the final hearing but before giving judgment, Hayden J visited AH in hospital, where he spent time with her in the absence of her family but with a nurse and a solicitor present. A note was taken, which was disclosed to the family shortly before the Court of Appeal hearing. The note recorded that the judge had said to AH that he did not know what she wanted and that ‘it’s very, very hard for you to tell me’. He said, ‘I think it may be that you want some peace’ and then, ‘it is not easy for you to communicate, but I think I am getting the message’. The judge subsequently spoke to two of AH’s children and informed them that he ‘got the clear impression she wanted some peace, she showed me that she did’.
Mr Justice Hayden’s judgment declared that it was not in AH’s best interests for her to continue to receive life-sustaining ventilatory treatment, but his decision was challenged on appeal by AH’s 4 adult children.
The appeal proceeded on the grounds that Hayden J used a visit to AH in hospital as an evidence gathering exercise to establish what AH’s views were, which likely influenced his overall conclusions.
The Court of Appeal allowed the appeal and directed a re-hearing for the following reasons:
the judge was not equipped properly to gain insight into AH’s wishes and feelings, given her complex medical conditionin order to ensure procedural fairness, the parties
needed to be informed and given an opportunity to make submissions
The Court of Appeal stated that there is an urgent need for further guidance to be provided on the issue of judicial visits within Court of Protection proceedings to the person who lacks capacity. Until such guidance is published, Lord Justice Moylan proposed four key matters which should be addressed, ideally at an early stage, before the visit takes place and after hearing representations from the parties:
whether the judge will carry out a visit
the purpose of any visit
when the visit is to take place and the structure of the visit (in other words, how the visit is to be managed; what is to happen during it; and whether it is to be recorded and/or a note taken)
what is to happen after the visit. This will include, depending on the purpose of the visit, how the parties are to be informed what occurred; when and how this is to happen; and how this will fit within the hearing to enable it to be addressed as part of the parties’ respective cases.
It is important to note that the Court of Appeal has not said that judicial visits are inappropriate, just that the way in which they are conducted and the communication with the parties needs to be clearly defined. For all Court of Protection cases where a judicial visit to see the person who is subject to the proceedings is being considered, whether that is for healthcare decisions, financial matters, or any other decisions that the Court is being asked to make for someone who lacks mental capacity, it is now necessary for there to be much more careful consideration at an early stage of whether a visit by the Judge is appropriate and how it should be conducted.