Judicial Visits to ‘P’
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Hayden,Mr Justice Charles |
| Judgment Date | 10 February 2022 |
| Neutral Citation | [2022] EWCOP 5 |
| Court | Court of Protection |
[2022] EWCOP 5
Royal Courts of Justice
Strand
London WC2A 2LL
The Honourable Mr. Justice Hayden
The Hon Mr Justice Charles
Vice President of the Court of Protection,
Introduction
This short practical guidance is intended to provide, hopefully helpful, suggestions as to how the Court and practitioners might ensure that meetings between the Judge and P, during proceedings, are conducted most effectively and enhance the participation of P. Earlier guidance was issued on the 14 th November 2016, by Charles J, as Vice President of the Court. That document was primarily directed towards Health and Welfare cases and provided some additional assistance to participation of P in Property and Affairs cases. It did not seek to address meetings between the Judge and P in Serious Medical Treatment (SMT) cases. In principle, there should be no reason why the approach in SMT cases should differ from other cases. This document is intended to supplement, not to replace the earlier guidance. As the two require to be read together, and for convenience of access, I propose to reissue the 2016 guidance. I would add only one caveat. Charles J did not and could not have anticipated the wholesale migration to video conferencing platforms that has characterised every aspect of professional and indeed private life in the last 20 months. His guidance should be read with these developments in mind.
At the time of Charles J's guidance, visits by Tier 3 may have been less common, though there are certainly a significant number of reported cases where this has occurred. In many Tier 3 cases the Court will be concerned with individuals in a compromised state of consciousness. Where P was unlikely to be conscious or unable to communicate effectively or at all (and where there were no available tools or strategies to promote this) a visit by the Judge was generally regarded as unlikely to yield any forensic value and perhaps even cause avoidable delay. The good sense of this is self-evident. Beyond this, it is unnecessary to say more.
During the course of the pandemic, the Court of Protection has conducted proceedings ‘remotely’ and in a manner which, whilst not a substitute for an attended hearing, is widely agreed to have been effective. Perhaps one of the most significant developments has been the realisation that the technology can be deployed to incorporate P into the court process in a more creative and flexible way than had hitherto been realised. Thus, Judges have made remote visits to Care Homes, Intensive Care Units, private homes, and a variety of other venues where it has been possible to meet with P. Additionally, P has frequently been able to attend remote hearings where attendance in a court room would not have been possible. The increased use of technology has undoubtedly made remotely conducted judicial visits to P, in SMT cases, far more achievable than was previously the case.
A decision to visit P, either remotely or in person, will always be a matter for the individual Judge to determine. The guidance below is suggestive only. Neither is it intended to be a comprehensive checklist of the matters which need to be considered. It is not in any way to be taken as an indication that judicial visits will ordinarily be necessary. In short, it is not constructed to be prescriptive. The Court of Protection is a highly fact-specific jurisdiction, its central philosophy which emphasises the individual, is resistant to rigid or prescriptive guidance
Many SMT cases will require an urgent hearing, Counsel may be instructed on very short notice and a Judge will have been allocated late in the day. Detailed consideration is unlikely to have been given to the possibility of P meeting the Judge. Nonetheless, thought should always focus on whether it is likely to be possible and/or potentially productive. In rare instances, a judicial visit may simply be driven by respect for P's dignity. Family members are sometimes eager for a Judge to see P even where there is no easily identifiable purpose. Sometimes, it will be neither more nor less than a signal of respect, which may enable family members to come to terms with a grave decision.
Principles
The principles which will invariably apply to judicial visits are identified below. Again, the list is non-exhaustive:
I. A judge meeting with P can achieve a number of important objectives, including (where P lacks capacity) their participation in ‘best interests’ decision-making, as required by s.4(4) Mental Capacity Act 2005. Which provides:
(4) 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.
It is important to emphasise the mandatory nature of this obligation.
II. A decision to meet P is one which must be taken by the judge, having listened to any representations made on behalf of the parties. In particular, there should be discussion directed towards identifying a clear understanding, of the scope and ambit of the visit.
III. However, it is in the nature of such visits that the parameters may become unsettled or expanded by events and exchanges. It is, important to emphasise that:
i. a judge meeting P will not be conducting a formal evidence-gathering exercise;
ii. a visit may serve further to highlight aspects of the evidence that the Judge has already heard, in a way which reinforces oral evidence given by either the experts or family members;
iii. a visit may sometimes lead the Judge to make further enquiries of the parties, arising from any observations during the visit;
iv. at any visit the Judge must be accompanied, usually, by the Official Solicitor or her representative (at Tier 1 and 2 this will usually be the instructed solicitor);
v. it will be rare for a member of P's family to be present at a Judicial visit. In principle, this should usually be avoided;
vi. a note must be taken of the visit and quickly made available to the Judge for his or her approval. That note should be circulated to the parties for them to consider and where appropriate to make any representations arising from it;
vii. where the Judge considers that information from, or the experience of, visiting P may have had or might be perceived to have had an influence on the ‘best interests’ decision, the Judge must communicate that to the parties and, where appropriate, invite further submissions
Practicalities
In order to give effect to these principles and where the application is not made in an emergency, the parties should provide the Court with:
Vice President of the Court of Protection,i. information helping to inform the judge as to whether a visit to P (remotely or otherwise) is likely to be required;
ii. what practical steps require to be taken to facilitate a visit. Where an in-person visit is canvassed, any relevant risk factors should be identified, and measures thought necessary to mitigate risk. Most judicial visits at Tier 3 are to hospitals which will have their own protocols in place. These have been amended regularly during the course of the pandemic. The formal HMCTS sanctioned risk assessment process, where it is applicable, should apply to Tier 3 judges;
iii. whether there is any specific assistance that can be given to the judge to facilitate communication with P most effectively. In this respect, it will always be helpful to have regard to Charles J's guidance at para. 14 which is set out here for convenience:
14. If P wishes to meet with the Judge, it must first be determined what the purpose of such a meeting would serve and the court and the parties must be clear about that in the particular case. In addition consideration should be given to:
(a) Informing the Judge/regional hub of P's wish, and seeking the Judge's views as soon as possible, providing the Judge and court staff with any relevant information about how such a meeting might take place to maximise P's participation, and seeking their views about what is practicably possible, taking into account the above suggestions;
(b) Alerting the Judge and court staff to any risk issues which may be relevant for a visit by P to see the Judge at the Courtroom or in the Court building, or for the Judge visiting P at a care home or hospital;
(c) Who else might attend such a meeting?
(d) Whether the meeting should be video or audio recorded and if so how and by whom?
(e) Whether a note is to be taken of the meeting and if so by whom?
iv. who will attend the visit with the judge? Where the Official Solicitor is appointed as litigation friend for P, the expectation is that the attendance would be by a representative from the office of the Official Solicitor. In any other case, the parties should consider, with the judge, who should attend; and
v. who will take the note of the visit (audio- or video-recording will not be used to assist in the production of the note unless specifically sanctioned by the Judge).
Royal Courts of Justice
Strand
London WC2A 2LL
Clerk: Beronique Addington
Beronique.addington@justice.gov.uk
Vice President of the Court of ProtectionFacilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings
th November 2016
This practical guidance is provided in order to provide helpful suggestions as to how practitioners might consider enhancing the participation of P in proceedings in the Court of Protection. Whilst this guidance is primarily directed towards health and welfare cases in the Court, it is also likely to be of assistance in some, but by no means all, property and affairs cases.
The guidance is not prescriptive. It is suggestive only. It is not a required checklist of all matters for consideration in all cases. Instead it is a...
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