Re AH

A judicial visit to P during unresolved Court of Protection proceedings must form part of a fair and transparent process. If a judge may have used a visit to obtain evidence or insight into P’s wishes and feelings, particularly where P’s condition makes interpretation difficult, the parties must be told and given a proper opportunity to respond.

A best-interests decision concerning life-sustaining treatment cannot stand where that procedural defect may have affected the assessment of a material factor. Before any visit, the court should determine its purpose, management, recording and the procedure for disclosure and further submissions.

AH lacked capacity to decide whether ventilatory treatment should continue. The NHS Trust sought a declaration that continued ventilation was not in her best interests. Hayden J, sitting in the Court of Protection, made that declaration but allowed time for family members to visit AH: [2021] EWCOP 51.

AH’s children appealed. They challenged the treatment of her earlier ReSPECT form, her religious and cultural views, her wishes and feelings, and her Convention rights. Shortly before the appeal hearing, they received a note of the judge’s post-hearing hospital visit to AH. The central issue became whether the visit had introduced procedural unfairness into the best-interests decision.

1. Permission to appeal was granted and the appeal was allowed unanimously. The declaration that continued ventilation was not in AH’s best interests was set aside. A rehearing was required as soon as possible. The court did not determine whether continued ventilation was ultimately in AH’s best interests.

2. The governing framework remained the best-interests assessment under the Mental Capacity Act 2005. There is a strong, but rebuttable, presumption in favour of preserving life. The court rejected the challenges based on AH’s ReSPECT form, religion, culture, wishes and feelings, and Convention rights. The emergency-care form gave very little assistance on whether AH would wish long-term ventilation to continue in her radically different present condition. The trial judge had been entitled to weigh the evidence of AH’s values and wishes.

3. The fifth ground succeeded. The language used during the judge’s hospital visit was capable of showing that he had sought, and believed he had obtained, an indication of AH’s wishes. Given AH’s complex condition and limited means of communication, it was strongly arguable that the judge was not equipped to draw that conclusion without further evidence or submissions.

4. Procedural fairness required the parties to be informed of any such evidential use of the visit and given an opportunity to address it. The court could not conclude that the irregularity had made no difference. It could have affected the assessment of AH’s wishes and feelings, a key factor in the ultimate best-interests determination.

5. Pending further guidance, a judicial visit to P should be planned after hearing the parties. The court should decide whether there will be a visit, its purpose, timing and structure, whether it is recorded or noted, and how its contents will be disclosed and addressed within the proceedings.

• Court of Appeal (Civil Division): Permission was granted and the appeal allowed. The declaration was set aside because the judge’s post-hearing visit to AH may have caused procedural unfairness. A rehearing was required: [2021] EWCA Civ 1768.
• Court of Protection: Hayden J declared that it was not in AH’s best interests for ventilatory treatment to continue after 31 October 2021, while permitting a period for family visits: [2021] EWCOP 51.