There is a ‘pressing need’ for the Court of Protection to develop guidance for practitioners and judges on judicial visits to the subject of proceedings, the president of the Family Division has said.
A decision that it was in the best interests of a 56-year-old woman, described as ‘the most complex Covid patient in the world’, to have life-sustaining treatment withdrawn was overturned today because of possible procedural unfairness in relation to the judge’s visit to see her in hospital.
Mr Justice Hayden, the vice president of the CoP, visited the woman – known only as AH – after the parties had made their final submissions and before he gave judgment.
The judge spoke to AH and said that he did not know what she wanted and that ‘it’s very, very hard for you to tell me’. He then said: ‘I think it may be that you want some peace.’ He later said to AH: ‘It is not easy for you to communicate, but I think I am getting the message.’
In September, Hayden ruled that it was ‘not in AH’s best interests that ventilation be continued indefinitely’. AH’s children appealed, arguing that Hayden wrongly used his visit as an ‘evidence-gathering exercise to establish what AH’s views were’.
The Court of Appeal held that it was ‘certainly possible’ that the hospital visit ‘might have had an effect on the judge’s ultimate determination’, and directed a rehearing of the case.
Giving the judgment of the court, Lord Justice Moylan said ‘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 Mr Justice Charles’, the former vice-president of the CoP in 2016.
In a short concurring judgment, the president of the family division Sir Andrew McFarlane said: ‘The light shone by this case on the apparently developing practice of judicial visits to P [the subject of proceedings] 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.’
McFarlane, who is also president of the CoP, said that a practice direction or presidential guidance may now be issued.