Official Judicial Visits to P (Guidance)



Judge: Hayden J

Citation: [2022] EWCOP 5

Following the case of AH, in which the Court of Appeal expressed the “pressing need” for guidance in relation to judicial visits, the Vice-President of the Court of Protection has issued guidance on 10 February about such visits. In it, he sets out principles to apply and practicalities required to give effect to those principles. He has also taken the opportunity to re-issue guidance previously issued by the former Vice-President in 2016, which covers a wider range issues relating to participation of P and vulnerable persons in the Court of Protection.

The guidance applies generally to cases in the Court of Protection (health and welfare, property and affairs and serious medical treatment). The Vice President noted that in cases where P is unlikely to be conscious or communicate effectively and there are no available means of improving this situation,  ‘a visit by the Judge was generally regarded as unlikely to yield any forensic value and perhaps even cause avoidable delay.’ [2]

A decision to visit P is always a matter for the individual judge, and the guidance is ‘suggestive only’ and not ‘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.’ [4]

The guidance sets out the key principles for judicial visits at [6]:

  1. 4(4) Mental Capacity Act requires a best interests decision maker to ‘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.’ The guidance ‘emphasise[s] the mandatory nature of this obligation.’
  2. 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:

  1. a judge meeting P will not be conducting a formal evidence-gathering exercise;
  2. 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;

  1. at any visit the Judge mustbe accompanied, usually, by the Official Solicitor or her representative (at Tier 1 and 2 this will usually be the instructed solicitor);
  2. 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;
  3. a note mustbe 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

The guidance also sets out a number of practical issues on which the parties should assist the court by providing [7]:

  1. information helping to inform the judgeas to whether a visit to P (remotely or otherwise) is likely to be required;
  2. 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 …

  1. who will attend the visitwith 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
  2. 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).

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