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President of Court of Protection says guidance needed on judicial meetings with subject of proceedings

The President of the Court of Protection has acknowledged that there is “a pressing need” for guidance on the apparently developing practice of judges meeting the subject of proceedings (P), after the Court of Appeal set a judge's decision aside due to the "procedurally flawed" nature of a hospital visit he made.

Sir Andrew McFarlane suggested that this guidance might be similar to that which is available in the Family Court with regard to judges meeting with children who are subject to contested proceedings.

The President said he would invite ‘The Hive’, a multi-disciplinary forum in which matters of professional and jurisdictional importance to the Court of Protection are debated and developed, urgently to consider the issue of judicial meetings with P so that a Practice Direction or Presidential Guidance on the topic might be issued.

Sir Andrew accepted though that visits to P may well be of value in an appropriate case. "It is, however, important that at all stages and in every case there is clarity over the purpose of the encounter and focus on the fact that at all times the judge is acting in a judicial role in ongoing court proceedings which have yet to be concluded.”

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The President also endorsed the approach set out by Lord Moylan in the Court of Appeal’s ruling in AH, Re (Serious Medical Treatment) [2021] EWCA Civ 1768 (25 November 2021) as appropriate until guidance additional to or in place of that set out in the 2016 guidance issued by Charles J, "Facilitating participation of 'P' and vulnerable persons in Court of Protection proceedings" is issued.

Lord Moylan said: “….It is clear that the following matters should be addressed and, if possible, addressed in advance of the final hearing so that any visit can be included as appropriate within the court process. Clearly, these matters will need to be determined before any visit takes place and after hearing submissions or observations from the parties:

(a) Whether the judge will visit P;

(b) The purpose of any visit;

(c) When the visit is to take place and the structure of the visit (in other words, how the visit it to be managed; what is to happen during it; and whether it is to be recorded and/or a note taken);

(d) 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 so as to enable it to be addressed as part of the parties' respective cases.”

In the case of AH, Lord Justice Moylan "regrettably" found that a judgment by the Vice President of the Court of Protection, Mr Justice Hayden, in which he declared that it was not in AH’s best interests for her to continue to receive ventilatory treatment, had been undermined by his visit.

AH had been receiving ventilatory treatment since January 2021 due to profound Covid-19 symptoms. Following the end of the hearing in the Court of Protection, Mr Justice Hayden went to visit her in hospital. 

In his decision, the judge wrote that ventilation was now "burdensome and medically futile" and was protracting avoidable physical and emotional pain.

The family applied to appeal the decision, advancing five grounds.

The fifth ground claimed that the judge wrongly used the visit as an "evidence gathering exercise to establish what AH's views were", which "likely influenced his overall conclusions", and that this rendered his decision procedurally unfair because the parties were not given the note of the visit, nor given an opportunity to make submissions in respect of the visit, prior to the judgment.

Lord Justice Moylan dismissed the first four grounds but accepted the fifth.

The Court of Appeal judge said: "I have, very regrettably, come to the conclusion that the judge's decision cannot stand and must be set aside. I say, very regrettably, because he clearly gave this case a great deal of careful consideration, as is accepted by all parties, and the description of AH's current situation and prognosis is, indeed, bleak. But, in a case which concerns the continuation of life-sustaining treatment it is particularly important that the process leading to the decision is not procedurally flawed."

He said it was strongly arguable that Mr Justice Hayden was not equipped to gain any insight into the patient's wishes, undermining his decision.

Furthermore, Lord Justice Moylan found that in order to ensure procedural fairness, the parties needed to be informed of the meeting and allowed to make submissions.

Accordingly, Lord Justice Moylan proposed that permission to appeal be granted and the appeal allowed. There would need to be a rehearing which will have to take place as soon as possible, he added.

In a short concurring judgment, Sir Andrew also found that there was a lack of clarity over the purpose of Mr Justice Hayden’s visit and the role of the judge in undertaking it.

He added: "If, as my Lords and I have accepted, it may have been the case that Hayden J was seeking to obtain some indication of AH's wishes and feelings, then great care was needed both in the conduct of the judicial interview and the manner in which it was reported back to the parties so that a fair, open and informed process of evaluation could then be undertaken within the proceedings."

Sir Andrew Patten agreed with the judgments of Lord Moylan and the President.

Adam Carey

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