Following on from the Judgment in the Court of Appeal in Re AH (Serious Medical Treatment) [2021] EWCA Civ 1768, recent guidance has now been issued in relation to judicial visits by Hayden J. Earlier guidance had been issued on 14/11/16 but that had really been directed towards Health & Welfare cases but also provided some further assistance to the participation of P in Property & Affairs cases. This new guidance therefore was not intended to replace the earlier guidance, but to supplement it.
Hayden J acknowledged that during the pandemic, many proceedings had been conducted remotely in the Court of Protection and it had been widely agreed to have been effective, although not a substitute for an attended hearing. He said that many SMT cases would require an urgent hearing and thought should always centre on whether it is likely to be possible and/or potentially productive.
3 principles were identified and within those principles, Hayden J said it was “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”.
There were also practical steps that the parties could take and provide the Court with the following, where the application wasn’t made in an emergency:
“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:
- 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).”
To read the full judgment, please click here.
If you have any questions regarding this summary case law please contact Christine Marsh here.