In this Court of Appeal case concerning judicial visits to P, Katie Gollop QC represented the NHS Trust (instructed by Kennedys) and Nageena Khalique QC represented AH instructed by her litigation friend, the Official Solicitor.

Read Katie Gollop QC’s analysis of the case below:

Judicial visits to P in the Court of Protection: First, work out its purpose

Re AH [2021] EWCA Civ 1768 (25 November 2021)

In Re AH,[1] for the first time the Court of Appeal considered judicial visits to P in the Court of Protection, set out the matters that will need to be determined before any such visit takes place, and called for guidance, similar to that in the Family Court with regard to judges meeting children subject to contested proceedings.

Pending such guidance, and per Moylan LJ (see §75), the following matters will need to be determined before any visit to P takes place and after submissions from the parties:

1. Whether the judge will visit P;
2. The purpose of any visit;
3. 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);
4. 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.

The Facts

In December 2020, AH, who has four adult children, was admitted to hospital with Covid-19. The virus caused her devastating, permanent injuries to her brain, nerves and muscles, unable to speak or move other than small movements of the head and neck, in a minimally conscious state plus, and dependent on mechanical ventilation.

The hospital became concerned that further treatment with ventilation was causing distress and was not in her best interests. It issued proceedings for a declaration that it was lawful and in AH’s best interests not to be provided with further such treatment.

The application was heard by the Vice President of the Court of Protection.[2] The two experts instructed independently reached the view that more treatment was not in AH’s best interests. Some of her children did not agree and pointed to her faith as a Muslim and the pleasure she derived from the company of her family as reasons why AH would wish to continue to be ventilated, and why it was in her best interests for that treatment to continue. The application was also opposed by the Official Solicitor.

After the conclusion of the evidence, and having received final written and oral submissions, the Vice President visited AH in hospital and saw and spoke to two of her children there. Throughout, the Judge was accompanied by a solicitor from the Office of the Official Solicitor who made a record. That record was not sent to the parties and the Judge did not communicate with the parties about what happened during his visit. He then gave judgment deciding that there should be time to enable the family to gather round AH, and that ventilation should not continue after the end of October 2021.  AH’s children appealed that decision.

The Court of Appeal was unable to uphold the Vice President’s decision and directed that it be set aside and that there be a re-hearing.

What Went Wrong

There were four grounds of appeal all of which were unsuccessful. Shortly before the appeal hearing, the appellants received the Official Solicitor’s Note of the Judge’s visit to AH. That led to a fifth ground of appeal which did succeed (see §4):

“the Judge’s visit was wrongly used by him 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.”

The Court of Appeal agreed that it was possible that the judge had used the visit to gather evidence and that to ensure procedural fairness, the parties needed to be informed of the content of the visit and an opportunity to make submissions.

The President will now invite the CoP’s multi-disciplinary forum “the Hive” to consider judicial meetings with P so that a new[3] Practice Direction or Guidance may be issued. Pending that, he endorsed the approach described by Moylan LJ.

[1] [2021] EWCA Civ 1768 –  judgment here
[2] [2021] EWCOP 51 – judgment here
[3] The existing guidance issued by Charles J in 2016 on Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings (here) only touches briefly at §14 on meetings with the judge.

For Nageena Khalique QC’s blog, please see our UK Medical Decision Law Blog here.