GUP v EUP & Anor

Summary

Arbuthnot J considered an appeal brought on behalf of VT by her litigation friend, the Official Solicitor, against a decision by a Circuit Judge (‘the CJ’) sitting in the Court of Protection, to conclude proceedings.

The background to this case had started in spring 2023. VT was 78 years old and had a historic diagnosis of schizophrenia but had previously always lived in her own home. She had been hospitalised for reasons which are not set out in the judgment, and Cambridgeshire County Council had made an application to authorise VT’s move from hospital to a residential care home. ‘VT was not represented at the initial hearing on 28th April 2023 or when a COP9 application was made on 10th May 2023 to change the discharge location.’ [2] VT moved to the care home on 2 June 2023, and her deprivation of liberty was authorised by a standard authorisation on 16 June 2023. However, the Court of Protection proceedings continued, and VT was expressing a wish to return home. 

The application was case managed, giving consideration to what arrangements would be required to facilitate VT’s return home. The judgment notes:

• A s.49 report was to be filed by 29 September;
• The order of 12 July contained a recital “which said that the parties' shared aim, in principle, was to return VT home, with or without a package of care” paragraph 4); 
• On 17 July, the court appointed an interim property and affairs deputy for VT;
• On 7 September 2023, the ICB was joined as a party as VT had been granted funding through the ICB as commissioner for services. It is not clear from the judgment whether this was NHS Continuing Healthcare, NHS-funded nursing care or s.117 aftercare, though it appears that the ICB became the primary funder of VT’s care. The ICB was ordered to provide a witness statement setting out the services it would be willing to fund to facilitate VT's return home. It was also to provide details of any other residential options including a care home; 
• The matter was listed for a one-hour directions hearing on 2 October 2023.

The CJ dismissed the application following submissions at the 2 October 2023 hearing after the ICB asked the court to determine the application summarily (a position that had only been announced to the other parties during pre-hearing discussions one hour prior to the hearing). The s.49 report had not been filed by the time of this hearing, but it was said that VT’s presentation had deteriorated (there does not appear to have been evidence filed about this). VT and the local authority sought for the court to make further directions “for further evidence about [VT]'s current presentation and an exploration of the care that could be given to her on a return home. Those representing VT and CCC contended that this would enable a fair best interests decision to be made” (paragraph 9).  Conversely, the ICB invited the court to conclude the proceedings that day. The ICB said it was increasingly of the view that a return home would be clinically unsafe for VT and on that basis it was not prepared to commission a package of care at home. The Official Solicitor and local authority opposed this and said that a contested hearing was required to consider VT’s best interests. The interim deputy stated that VT had private resources which might be able to fund private care at home but that they did not have the expertise or knowledge to put a package in place in a very short period of time. The deputy had provided a statement where she said it would take nine days for the property to be made suitable for VT. 

After hearing submissions, the Circuit Judge made final decisions that VT lacked capacity to make decisions as to her residence and care, and to manage her property affairs. The judge additionally determined that the best interests requirement of the standard authorisation was met. The judge gave a judgment which stated that VT lacked capacity on the evidence and said that there was no point in waiting for the section 49 report as it would not add very much to the picture which was "fairly clear" from other evidence. The CJ additionally found that it was not in CJ’s best interests to go home, and “all a further witness statement would do was to confirm what the Judge was being told in Court in submissions. The CJ did not see any purpose in prolonging the proceedings” (paragraph 15). The judge found that “VT was in declining physical health and she would need a full-time care package. There was a real risk VT would decline help and then she would deteriorate rapidly and that would not be in her best interests. It was not the ICB's job to put together a package of care and the professionals would be put to too much trouble” (paragraph 16).  

The Official Solicitor appealed this decision. By the time the matter was heard by Arbuthnot J on1 November, VT had stabilised. The initial thoughts that she was in a rapid terminal decline were misplaced.  By 28 November, however, VT’s health had ‘declined substantially.’ 

Arbuthnot J note that “[t]his was the second case in a short period  where I had allowed an appeal against final decisions made by a CJ at a case management hearing when the parties had expected only a procedural hearing.” As a result, Arbuthnot J solicited principles and some suggestions for guidance from the parties. 

After rehearsing the overriding objective and duty of the court to ‘actively manage cases,’ Arbuthnot J noted that while there was no express power for summary judgment, the Court of Protection may (under COPR 2.5) apply the Civil Procedure Rules or Family Procedure Rules to fill any lacunae. Arbuthnot J also surveyed Court of Protection case law regarding case management, including KD & Anor v London Borough of Havering [2009] EW Misc 7,  N v ACCG & Ors [2017] UKSC 22, and CB v Medway Council & Anor (Appeal) [2019] EWCOP 5. Arbuthnot J also considered the European Court of Human Rights decision of Sýkora v The Czech Republic, 22 November 2012, on the issue of the quality of evidence required to determine capacity. 

Arbuthnot J set out her conclusions following this survey of rules and authorities:

34. It plainly is possible for the Court of Protection to:

a.    decide matters of its own motion;

b.    decide which issues need a full investigation and hearing and which do not;

c.    exclude any issue from consideration; and
d.    determine a case summarily of its own motion.

35. In any cases where such powers are contemplated, at a stage where the determination would dispose of the case, two matters will need to be given careful consideration:

a.    Whether the court has sufficient information to make the determination (per Hayden J "curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry" paragraph 33 CB supra); and

b.     Whether the determination can be reached in a procedurally fair manner.

36. Deciding whether the evidence has reached a point at which the court can make a determination is a case management decision. Whether the evidence has reached that threshold will, necessarily, depend on the facts of each case.

37. The requirements of procedural fairness are not set in stone; the requirements are informed by context. Notice to the parties is an element of procedural fairness. Whether such notice is required, and how much notice is needed, will depend on the context. Procedural fairness in this case, however, would seem to require more than one hour's notice that final decisions might be made.

38. If an early final hearing is contemplated by the Court then an approach might be to include a recital to that effect in an earlier order. In some cases, notice that a final determination is contemplated might alter the evidence which is put before the court. In other cases, I accept that the provision of notice might have no impact on the preparation of the case.

39.  Active case management of course allows the Court to consider whether a final order could be made at a case management stage and to consider what needs a full investigation and what does not. The Court must take a proportionate approach to the issues.

40. In allowing VT's appeal, I determined that the CJ [Circuit Judge] reached a decision which was not properly open to them. The section 49 report was not available and it was not appropriate for the CJ to make a decision on capacity when the CJ could only say that it was "fairly clear" from other evidence that VT lacked it. The decision as to best interests was contested properly by those acting on behalf of VT and CCC and was taken without permitting adequate exploration of the reasons why alternative options were not open to VT.

41. In short, in this case, the CJ reached decisions which, in principle, were possible, but which were not sustainable on the material before the court. VT's interests were not properly considered. In the circumstances, it was not appropriate to reach such an important decision for VT based on submissions. The effect of the decisions taken were to deprive VT of a fundamental freedom. The decisions were taken without the cogent evidence required and in a procedurally unfair manner.

Comment 

The facts of this case are striking, and there is a strong implication from this judgment that VT’s return home may have been quite plausible. She had both private funds and an entitlement to support from the ICB, as well as a deputy stating that her home could be rapidly made ready for her. She had only recently left her home, and the view of the local authority (which appeared to have the longer experience of working with her) appeared to believe that a return home was plausible. A s.49 report was pending. It was quite thus a striking decision to determine this matter summarily without expert evidence on capacity which had been considered necessary only a few months prior, and what appeared to be no concrete evidence either on VT’s current presentation or the care which could be made available to her in her home. 

The case is of interest for its articulation of how and under what circumstances judges of the Court of Protection should permit further exploration, and when it may be appropriate to take final decisions on the information available. As set out above, there are very limited authorities in the Court of Protection which explicitly consider these issues, and often, in our experience, a lack of agreement between parties as to when it is appropriate for matters to be determined on the evidence available. While VT does not set hard and fast rules for when an application may be summarily determined, it sets out a helpful road map for parties and courts who are considering whether further directions for evidence serve any useful purpose. It also provides a useful reminder of the importance of having clarity as between parties and the court as to what decisions may or may not be taken at a ‘directions’ hearing.