The Court of Protection has published guidance on judicial visits to P in serious medical treatment cases. How does the guidance impact the work of lawyers who deal with CoP cases generally?
Previous guidance on judicial visits published in 2016 by the then vice-president of the Court of Protection focused primarily on health and welfare cases, but did not address judicial visits in Serious Medical Treatment cases.
Current Court of Protection Vice President Mr Justice Hayden’s short practical guidance supplements that earlier guidance. He suggests in principle there should be no reason why the approach in Serious Medical Treatment cases should differ from other cases.
He highlights how the increased use of technology in the past 20 months has allowed judges to make remote visits to care homes, ICUs, private homes etc to meet with P.
Also, that P has frequently been able to attend remote hearings in circumstances where attending in a court room would have been impossible.
This use of technology has made remotely conducted judicial visits to P, in Serious Medical Treatment cases, far more possible than previously.
The recent guidance is set out in 3 sections: introduction, principles and practicalities.
What does this mean for lawyers with non-urgent Court of Protection cases?
According to the guidance, you should provide the court with information:
- to help the judge decide whether a visit to P (remotely or otherwise) is likely to be needed, for example identifying the scope and ambit of the visit.
- on practical steps to facilitate a visit – if an in-person visit, any relevant risk factors and measures to mitigate risk
- about specific assistance that can be given to the judge to facilitate communication with P most effectively. See paragraph 14 of the 2016 guidance for examples – republished in the February 2022 guidance.
- concerning people who will attend the visit with the judge - if the Official Solicitor is appointed as litigation friend for P, a representative from the Official Solicitor’s office would be expected to go
- confirming who will take the note of the visit (audio- or video-recording will only be used where specifically sanctioned by the judge).
Principles underpinning whether a judicial visit should take place
In accordance with the Mental Capacity Act 2005, the judge must as far as reasonably practicable permit and encourage P to participate in ‘best interests’ decision-making.
But it is the individual judge’s decision whether to visit P as Court of Protection cases are driven by the facts of the particular situation.
How does this differ for Serious Medical Treatment cases?
Serious Medical Treatment cases often require urgent hearings. Counsel is usually instructed on short notice and a judge will be allocated late in the day. While detailed consideration of the above factors may not be possible, thought should always be given to whether a judicial meeting is likely to be possible and / or potentially productive.
Where individuals are in a compromised state of consciousness (Tier 3 cases) a judge’s visit is less likely to be considered worthwhile, as it may be unlikely to yield any forensic value and could cause delay. Though sometimes, it may be concluded that a judicial visit may help family members accept grave decisions.