VT v NHS Cambridgeshire And Peterborough Integrated Care Board & Anor

The Court of Protection may determine issues summarily at a case-management hearing, including on its own initiative, but the power requires restraint where the decision may determine proceedings and affect a person’s liberty or welfare. The court must have sufficient, cogent evidence for the proposed determination and must act fairly in the circumstances. Procedural fairness includes adequate notice that final decisions may be made. One hour’s notice will ordinarily be insufficient for a contested determination involving capacity, best interests or deprivation of liberty. The adequacy of the evidence and the fairness of the procedure are fact-sensitive case-management questions.

VT, an elderly woman with a reported historic diagnosis of schizophrenia, was moved from hospital into residential care under Court of Protection orders. She wished to return home. At a directions hearing, the first respondent sought summary determination that VT lacked capacity and that remaining in residential care was in her best interests. The application was made only one hour before the hearing, when a section 49 report had not been filed and evidence concerning a possible care package at home remained incomplete.

The Circuit Judge made final decisions on capacity and best interests. VT, supported by the second respondent, appealed. Permission was granted and the appeal was allowed. The judgment then gives guidance on the circumstances in which final decisions may properly be made at a procedural hearing.

1. The appeal was allowed. The Circuit Judge had reached decisions which were legally possible in principle but unsustainable on the material available.

2. Under the Court of Protection Rules 2017, read with rule 2.5 and the Civil Procedure Rules 1998 where necessary, the court has extensive case-management powers. It may decide matters on its own initiative, identify which issues require a full investigation, exclude issues, and determine a case summarily. Those powers must further the overriding objective of dealing with cases justly, fairly, expeditiously and proportionately.

3. Where a contemplated determination would dispose of the case, the court must consider two matters carefully: whether it has sufficient information to make the decision and whether the decision can be reached in a procedurally fair manner. In cases affecting fundamental liberty, cogent evidence and proper enquiry are required. The evidential threshold is a fact-sensitive case-management question.

4. Procedural fairness is contextual. Notice to the parties is an important element, and the amount of notice required depends on the circumstances. In this case, one hour’s notice that final decisions might be made was inadequate. Earlier orders may appropriately record that an early final determination is contemplated, since that may affect the evidence prepared.

5. The capacity decision was inappropriate because the required section 49 report was unavailable and the Circuit Judge could only say that incapacity was fairly clear from other evidence. The best-interests decision was contested and required proper exploration of the reasons why a return home, including alternative care arrangements, might not be available. The decisions were therefore made without cogent evidence and in a procedurally unfair manner.

• Court of Protection: On 2 October 2023, a Circuit Judge sitting as a nominated judge made final decisions on VT’s capacity, residence, care and best interests at a hearing expected to be procedural.
• High Court, Court of Protection: Mrs Justice Arbuthnot granted permission and allowed the appeal on 1 November 2023, subsequently giving written guidance on 14 February 2024.