Court Of Appeal Set Aside Court Of Protection Decision As Family’s Views Not Fully Considered

The number of cases appealed in the Court of Protection is minimal and the appeal process is often only invoked in cases where there is a great impact on the protected party as a result of the original decision.

A recent case brought to the Court of Appeal was AH, Re (Serious Medical Treatment) [2021]. The original decision was covered by Vikky Lai and can be read here.

Case background

In summary, the protected party was significantly affected by COVID-19 and required ventilation assistance to remain alive. The case brought before the Court of Protection was whether the ventilation should remain in place or not.

In the first instance it was held it was not in the protected party’s best interests to remain on ventilation forever and it should be turned off once the protected party’s children had the opportunity to be with her, which would then lead to the protected party’s death. This was a particularly difficult decision for the Court of Protection and on reaching that decision Justice Hayden had visited the protected party in the hospital to ascertain a greater understanding of the case.

The protected party’s children were not happy with the decision and appealed to the Court of Appeal. The appeal was brought on the five below grounds, with the appellants alleging:

The Court of Appeal’s decision

The Court of Appeal held the Judge did properly consider the protected party’s views, history, and the impact of human rights and therefore dismissed the first four grounds of appeal. The remaining ground of appeal however was upheld and led to the case being re-listed. The Court of Appeal held the Judge was not in a position to ascertain the protected party’s wishes when visiting the hospital. In addition to this, it appeared that the family was not given the opportunity to make submissions in the first instance – which they should have been allowed to do – in order to ensure procedural fairness. The Court of Appeal believed that the Judge had erred in the procedure. In order to properly establish what is in the protected party’s best interests, the case will now be re-heard.

Comment

This decision may well be quite significant for relatives of protected party’s. The fact that the relatives’ views were marginalised was a significant factor in the Court of Appeal allowing the Court of Protection decision to be appealed.

The acid test in all Court of Protection decisions of course is that whatever decision is made must be in the protected party’s best interests according to the best interests criteria but in cases such as this, it does not simply mean that the Court must follow medical advice. There are many other factors the Judge is required to consider under section 4 of the Mental Capacity Act 2005.

As a consequence of this decision, it is also possible that further guidance will be developed in respect of cases where the Judge is to meet with the protected party, as this clearly formed part of the basis of the Judge’s original decision and the Court of Appeal did not appear convinced of the benefit of that meeting.