The role of judicial visits in Court of Protection cases

The Court of Appeal has allowed an appeal against a decision from the Vice-President, Mr Justice Hayden as it was argued that he used a judicial visit to P in hospital to inform his decision.

This tragic case involved AH who is a 56-year-old patient who suffers from a very serious complication following Covid infection. She is in hospital where the judge described her condition as a “parlous existence” with constant pain which appears to be causing her great distress, although her ability to communicate is extremely limited. The treatment provided by the NHS was praised by the judge as being “inspirational”. 

At the Court of Protection hearing before Mr Justice Hayden, AH’s children argued that treatment by ventilation should continue, but the judge disagreed and ordered that it should stop after 31 October 2021 in order to allow time for all the children to travel to the hospital. You can read our earlier blog post on the case here.

The family appealed this decision on a number of grounds, all of which with the exception of one were rejected by the Court of Appeal. The one exception was the potential unfairness of a judicial visit to AH which took place after the final hearing but before his decision. There was a lack of clarity as to the purpose of the visit and the extent to which it had informed the judge’s decision.

The Court of Appeal did not necessarily accept that the judge’s decision had definitely been affected by the visit but said that the judge’s comments on the outcome of the visit could be interpreted as indicating that he had thought AH was telling him she did not want to continue to live (which Lord Justice Moylan thought was not appropriate as the Judge was “not qualified to make any such assessment” given AH’s very poor communication). There was also a procedural irregularity in that the parties were not given the opportunity to make submissions on the judge’s note of his visit.

The Court noted that there was an increase in Court of Protection judges visiting patients in the context of ongoing proceedings and so urged for there to be either a Practice Direction or Presidential Guidance on the issue to avoid a repetition of this situation in future cases.

The Court suggested that if a judicial visit was to take place then a decision must be made prior to the final hearing and the purpose, structure and procedural framework for this needed to be set out clearly and agreed by all parties.

We await to see if such Guidance or Direction is given.

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