Judicial visits to 'P' in the Court of Protection
The participation of the protected party (P) in Court of Protection proceedings remains a priority, to ensure those at the centre of the debate are being listened to. Judicial visits allow P to communicate their wishes and feelings to the judge directly and provide an invaluable tool to ensure they are included in decisions made which will invariably impact their day-to-day life.
The Vice President of the Court of Protection, Mr Justice Hayden, has issued guidance offering suggestions as to how practitioners might ensure the most effective participation of P. He refers to earlier guidance of Charles J issued in November 2016, and stresses that the two should be considered together. The guidance of Charles J was largely aimed at Health and Welfare cases but did not seek to address meetings in Serious Medical Treatment (SMT) cases. Mr Justice Hayden adds the caveat that the guidance of 2016 could not have anticipated the widespread shift to video conferencing platforms, and as such, urges readers to be mindful of this when using it.
Mr Justice Hayden comments on the shift to the virtual method of conducting proceedings which, although not a direct substitute for a hearing in person, has provided insight into how technology can be utilised when considering how to involve P. Ordinarily, facilitating a meeting between P and the judge has been a difficult task in that a whole manner of factors must be considered to ensure P is appropriately supported, notwithstanding the lengths P (or even the judge) may have to travel to attend either at court or P’s home, the implications of which may have an impact on P. Mr Justice Hayden rightly points out that visits to P can now be conducted in a more flexible way, something that can hopefully continue to be implemented if and when the court return to the previous norm of hearings in person.
Perhaps the most important element to note within the new guidance is Mr Justice Hayden’s emphasis that decisions to conduct a visit to P, “will always be a matter for the individual Judge to determine.” He provides what he notes as “suggestive guidance” which is designed to mirror the fact that the Court of Protection is resistant to rigid or prescriptive guidance due to the highly individualistic and decision specific nature of its jurisdiction.
Before moving onto the principles, Mr Justice Hayden recognises that many SMT cases may facilitate P meeting the judge, despite the often-urgent nature of these proceedings, simply out of respect for P’s dignity. He notes that family members are often eager for a judge to visit P even when there is no immediately evident purpose for doing so. He considers that, in these rare instances, a judicial visit implies a signal of respect and may, in turn, enable family members to come to terms with a potentially grave decision.
Mr Justice Hayden notes the importance of establishing the purpose and nature of a judge’s obligation to permit and encourage participation as required by s.4(4) MCA 2005. He considers that the decision must be taken by the judge having considered submissions made by the parties, in particular discussions that aim to identify a “clear understanding, of the scope and ambit of the visit”.
He highlights the fact that a visit may only reinforce evidence the judge has previously been made aware of, but may also prompt the judge to make further enquiries arising from their own observations of P.
As has been the case in most visits, a judge must be accompanied by P’s representative (usually the Official Solicitor or the instructed solicitor), however, the presence of a family member should be avoided. It is then necessary for the meeting notes to be made available for the judge’s approval before being circulated to the parties.
Mr Justice Hayden concludes his guidance by offering a list of practicalities which coincide with the principles. He states that information helping to inform the judge as to whether a visit to P is likely to be required, as well as informing of the practical steps to be taken to best facilitate the visit, should be provided. This is in reference to in-person visits and how best to mitigate any identified risks. As with the participation of P in general, Mr Justice Hayden states that it should be considered whether there is any specific assistance the judge can be given in order to best communicate with P. The final practicalities involve considering who will attend the visit, the expectation being that this would be a representative from the Office of the Official Solicitor where she is appointed as litigation friend. If this is not the case, the parties should consider who should attend, as well as who will take the note of the visit to be shared following.
Fundamentally, the principles of Mr Justice Hayden mirror that of Charles J in 2016 whilst acknowledging the changes that have underpinned the move to a virtual legal world.