Hayden J has today issued new guidance on judicial visits to P, supplementing that of Charles J in 2016. You can read the new guidance here.
It considers specifically the i) the use of remote technology and ii) the pressures inherent in serious medical treatment ("SMT") cases. In such cases, which are inevitably urgent, detained consideration of a judicial visit may well not have been possible, but some thought should always be given to a visit, including where this is driven "by respect for P's dignity".
Non-exhaustive principles include the mandatory requirement (in section 4(4) Mental Capacity Act 2005) to encourage the participation of P (and reflected in rule 1.2, Court of Protection Rules 2017), the need for the decision to visit to be taken by the judge (after listening to representations) and the need for a clear understanding of the scope and ambit of the visit.
The guidance emphasises that:
- A visit is not an evidence-gathering exercise although it may highlight or reinforce evidence that has been heard;
- A visit may lead the judge to make further enquires of the parties;
- The judge must be accompanied, usually by the Official Solicitor or her representative; and the presence of family members will usually be avoided;
- A note must be taken of the visit and circulated once approved;
- In the event that the visit, or information received during the visit, may influence the "best interests" decision-making, the judge must communicate this to the parties.
Where the case is not urgent, parties should provide the court with information to help the judge decide whether a visit is likely to be required, the practical steps (including Covid-19 protocols) and assistance to facilitate communication with P. The parties will need to consider who will attend, and responsibility for providing a note. Audio or video-recording will not be used without the judge's specific agreement.
This guidance should be read alongside the earlier guidance of Charles J, which is now helpfully appended to the new document and housed on Bailii. There was a clarion call for updated guidance on judicial visits from the Court of Appeal in Re AH (Serious Medical Treatment), where a lack of clarity over the purpose of the judge to P led to his decision being overturned. Whilst Charles J's guidance refers at 14 to the need to establish the purpose of the visit, the new guidance - unsurprisingly in the light of the Court of Appeal's comments - provides a clearer focus on the purpose of such visits, how records of the visits should be created and, crucially, the use to which they can be put.