Judge: Court of Appeal (Sir Andrew McFarlane P, Moylan LJ and Patten J)
Citation:  EWCA Civ 1768
The Court of Appeal has made some very important observations about the role of judicial visits in Court of Protection cases.
In AH, it was asked to overturn the decision of the Vice-President, Hayden J, that it was not in the best interests of a woman, AH, to continue to receive ventilatory treatment after a short period to enable family members to travel to see AH.
The decision of the Vice-President in a case he described as involving the most complicated COVID patient in the world is analysed here, but in summary concerned a woman who had suffered substantial neurological damage as a result of the virus, and was being cared for in a critical care unit, dependent on mechanical ventilation, continuous nursing care, nutrition and hydration delivered via a nasogastric tube, and receiving various medications.
AH’s children sought permission to appeal (through legal representatives acting pro bono). The Trust resisted their application; the Official Solicitor was initially neutral but by the time her Leading Counsel came to make submissions supported the children.
The children’s appeal was on five grounds.
The first was that Hayden J gave insufficient consideration to what was said to be AH’s earlier capacitous decision that she wished to receive “full escalation” of treatment. Moylan LJ identified that this referred to the ReSPECT form that had been completed. As he said at paragraph 43:
[…] It is a computer form which is completed by a clinician who has had, what is called, “a ReSPECT discussion” with a patient. The discussion is intended to ascertain the patient’s views as to their priorities in the event of treatment being required in an emergency, if they are unable to make or express a choice. I would note, in passing, that it is not, as set out in the judgment and some of the written submissions, a form which is “completed” by AH.
Moylan LJ agreed with Hayden J that the form did not bear the weight that the family sought to ascribe to it, holding at paragraph 46 that:
It is directed, as is clear from the title, to emergency care and treatment. It is not directed to long-term treatment and so provides very little assistance to whether AH would want treatment to continue in her current condition which is very far from an emergency (emphasis in the original).
The second was that Hayden J had failed to appreciate the overwhelming importance to AH of her religious and cultural views and the impact of those views in relation to the withdrawal of medical treatment. As Moylan LJ identifed, this was closely connected to the third ground because, in effect, it was a submission that the judge’s conclusion as to AH’s wishes and feelings, or as he described it as, what she “would want”, was flawed because he failed to give sufficient weight to AH’s religious and cultural views when determining her wishes and feelings. Moylan LJ considered that this was not sustainable, holding at paragraph 48 that:
The Judge was aware of, and took into account at , that “AH’s religious and cultural views are integral to her character and personality”. This was consistent with the submissions made by Ms Khalique that religion “was a central part of [AH’s] life”. The Judge clearly considered all the evidence and was entitled to conclude, at :
“… I am not prepared to infer that it would follow that those views would cause her to oppose withdrawal of ventilation in these circumstances …”
I would add that the weight to be given to a particular factor is for the trial judge and not for this court.
The third ground was that Hayden J had failed adequately to consider AH’s past and present wishes and feelings. Moylan LJ dismissed this:
The fourth ground was that Hayden J had failed properly to balance the interference with AH’s rights under the ECHR; Moylan LJ found that the ground added nothing, the balance to be applied being clear, namely that applied by Hayden J: i.e. “whether to continue to provide ventilatory treatment is or is not in AH’s best interests” (paragraph 55).
The fifth ground related to Hayden J’s visit to see AH in hospital, which the children submitted that the visit, and what he appeared to take from it, was flawed and wholly undermined the fairness of the process and the validity of his decision. The circumstances of the visit were set out in the judgment thus:
On behalf of the children, it was submitted that Hayden J took into account what occurred when he visited the hospital when making his decision, in other words that:
It was further submitted that Hayden J was not equipped to draw from his visit any conclusions or insights as to what AH might want: “[t]he medical evidence shows that AH is in a “Minimally Conscious State-plus”; is unable to communicate; and has only a very limited ability to move, meaning that it is not easy to evaluate any response she might give. Dr Danbury, for example, concluded that he was not able to establish AH’s wishes” (paragraph 63).
Moylan LJ, “very regrettably,” came to the conclusion that Hayden J’s decision could not stand and must be set aside:
At paragraph 75, Moylan LJ also noted that:
Finally, we were told at the hearing that some judges hearing cases involving life-sustaining treatment will often, if not frequently, visit P. Having regard to what has happened in the present case, it seems clear, as suggested by the Official Solicitor, that further consideration needs to be given as to what guidance should be given, additional to or in place of that set out in the Guidance issued by Charles J [i.e. practice guidance “Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings“, issued on 3 November 2016]. However, until that takes place, it is clear that the following matters should be addressed and, if possible, addressed in advance of the final hearing so that any visit can be included as appropriate within the court process. Clearly, these matters will need to be determined before any visit takes place and after hearing submissions or observations from the parties:
(b) The purpose of any visit;
(c) 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);
(d) 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.
In a concurring judgment, Sir Andrew McFarlane P noted that:
89, More generally, the light shone by this case on the apparently developing practice of judicial visits to P indicates that there is a pressing need for the CoP to develop some workable guidance for practitioners and judges in a manner similar to that which is available in the Family Court with regard to judges meeting with children who are subject to contested proceedings. Whilst the circumstances in a children case, and the reasons for any judicial encounter, may differ from those that apply in the CoP, the need for clarity of purpose and procedural fairness are likely to be the same. In recent times, the CoP has established a multi-disciplinary forum known as ‘The Hive in which matters of professional and jurisdictional importance are debated and developed. I propose to invite ‘The Hive’ urgently to consider the issue of judicial meetings with P so that a Practice Direction or Presidential Guidance on the topic may be issued. Pending such direction or guidance, I would endorse the approach described by Moylan LJ at paragraph 75 of his judgment.
The Court of Appeal were at pains in this case to make clear that this was not a case where it considered that Hayden J had necessarily reached the wrong decision as to where AH’s best interests lay. The case is therefore very different to that of AB, where the Court of Appeal found that Lieven J had reached the wrong conclusion as to whether it was in the best interests of a woman with learning disabilities to undergo a termination. And the Court of Appeal were at pains to identify that Hayden J had, in principle, adopted the right approach to evaluating AH’s best interests – including, for instance, by reference to the place of her religious beliefs.
The problem was a different one, arising out of the ‘black box’ of the judicial visit undertaken by Hayden J. The Court of Appeal was clearly troubled both about the procedural fairness of such a visit – not the principle of visiting – but the lack of clarity about what exactly the visit was for, and the lurking sense of unfairness that it gave rise to.
Whilst this case was not about capacity, it is important to identify that similar issues might well arise in this context as well. The Court of Appeal was concerned that AH’s “complex medical situation” meant that Hayden J was not qualified to gain an insight into her wishes and feelings, but there are many situations where the complexity of P’s cognitive impairments could well make it equally difficult for the judge to evaluate the person’s capacity when they are engaging with them and – in effect – matching up the expert evidence that they have heard with their impression of the person. It is to be hoped the guidance that the Court of Appeal is inviting on a pressing basis also addresses this situation.
Pending the promulgation of the guidance, the matters set out by Moylan LJ at paragraph 75 will need to be considered on each occasion a judicial visit is under consideration. More broadly, many may well find of interest the article by Dr Paula Case, When the judge met P: The rules of engagement in the Court of Protection and the parallel universe of children meeting judges in the Family Court, which, as the abstract identifies “interrogates the under-explored domain of the prevalence and forms in which ‘P’ has engaged directly with the judge (particularly by meeting with the judge without giving formal evidence) with the aid of a database of over 200 ‘health and welfare’ judgments. An integrated approach is adopted, drawing from these judgments, but also cross-referencing the far more advanced literature and case law on children meeting judges in the Family Court to explore some of the issues.”
Entirely separately, it is also helpful that Moylan LJ put to bed a persistent confusion about the ReSPECT form (which also applies to other forms of advance planning in this area) – this is a form, capturing a discussion, either with the person or those interested with their welfare if they cannot participate, recorded by the clinician and forming clinical recommendations. It is not a form completed by the person – if the person themselves wants to set down what they want to happen (or not happen), then they need to make use of such tools as advance decisions to refuse treatment or appointing a health and welfare attorney. For more on these areas, see Alex’s shedinar.