Judge in Court of Protection declines request for judicial visit due to risk of “unconscious bias”

A judge sitting in the Court of Protection has declined to meet the applicant in advance of a capacity hearing, over concerns that a judicial visit “may influence decision making” and cause unfairness to the parties.

In Wareham v Betsi Cadwaladar University Health Board & Ors [2024] EWCOP, John McKendrick KC, sitting as a tier 3 judge, said: “Not only was there no obvious reason to meet with Laura [the applicant] in advance, I was concerned a judicial visit may influence my decision making one way or another, based upon my own observations which could not necessarily be fully communicated in her solicitor's written note of the meeting.”

The proceedings concerned a 36-year-old woman, Laura, diagnosed with Ehlers Danlos Syndrome and autistic spectrum disorder.

The proceedings were issued by the first respondent, the Betsi Cadwaladr University Health Board, pursuant to the Mental Capacity Act 2005, seeking orders authorising medical treatment in Laura's best interests. Laura was then an in-patient in hospital, placed in a medically induced coma.

The judge said: “The decisions that fall to be determined in respect of Laura's capacity on the facts as they present in February 2024 are:

1. whether she can conduct these proceedings;
2. whether she can decide whether to live in her current placement or live at her parents' home without a care package;
3. whether she can consent to receive care and treatment generally (other than specific medical procedures);
4. whether she can consent to be accommodated in her current placement for the purpose of being given the relevant care or treatment;
5. whether she can decide whether to have contact with her parents.”

Outlining the evidence, the judge stated that Dr Claudia Camden-Smith, a jointly instructed expert psychiatrist, concluded that Laura lacked capacity to make a decision in respect of her residence caused by an inability to understand and use and/or weigh the relevant information. Further, she concluded that Laura was unable to understand the nature of the proceedings, the role of the court and the role of her legal representation.

The judge had, prior to the start of previous hearings dealing with case management and interim best interests decisions, conducted remove judicial visits to Laura.

Those visits were conducted with the agreement of the parties, consistently with Laura's wish to meet the judge, and had taken place in compliance with the Practice Note on Judicial Visits found at [2022] EWCOP 5.

John McKendrick KC was again asked to meet with Laura in advance of the hearing on her capacity to conduct the proceedings and to make decisions about her (i) residence; (ii) care and support; and (iii) contact with others.

However, on this occasion, the judge concluded that a judicial visit might influence his decision making.

He said: “I was concerned that there was no directly meaningful purpose to meeting with Laura in advance of the hearing. It would not be to elicit her wishes and feelings, in a section 4 MCA sense for obvious reasons and I am aware her view is that she has capacity to make the decisions with which this application is concerned. Nor am I carrying out an assessment, formally or informally, of Laura's capacity. Instead I am required to read and hear the written and oral evidence on these issues and the apply the law to the evidence to reach determinations.

"Not only was there no obvious reason to meet with Laura in advance, I was concerned a judicial visit with Laura may influence my decision making one way or another, based upon my own observations which could not necessarily be fully communicated in her solicitor's written note of the meeting. The non-verbal communication and observation undertaken may have provided additional information that would be incapable of being communicated in a written note. Not only is there a risk of unconscious bias; a visit may cause an unfairness to the parties who are deprived of the context and non-verbal communication. Whilst judges are used to hearing evidence and then excluding it, my experience is that a judicial visit can leave a lasting impression."

He noted that section 4 (4) of the Mental Capacity Act places a duty on the court: "so far as reasonably practicable, [to] permit and encourage [Laura] to participate, or to improve her ability to participate, as fully as possible in any act done for her and any decision affecting her".

However this must be interpreted consistently with the language and purpose of the MCA, the judge said.

"Section 4 (4) is set out within section 4 which is concerned with best interests. The heading to section 4 is 'Best interests'. I consider the qualified duty on the court to ensure Laura's participation in these proceedings is principally directed at best interests decision making. Sections 2 and 3 which deal with capacity do not provide for a similar qualified duty. Whilst I accept that the court's determination of the capacity issues is a "decision affecting [Laura]" the common sense reading of this duty is that it relates to best interests. The Practice Note on Judicial Visits does not envisage judges conducting remote visits to P in respect of contested capacity."

That is not to say such visits are prohibited, the judge said. "They are not. However, the decision whether or not, or how, and when, a judicial visit to P should be carried out is a case management decision which should be undertaken consistently with the Court of Protection Rules and in particular in compliance with Rule 1.1 (the over-riding objective) which requires decisions to be made inter alia 'justly' and by 'having regard to the principles contained in the Act' which of course includes the qualified section 4 (4) MCA duty). Regard must also be had to Rule 1.2 which deals with the participation of P in the proceedings. This issue was largely dealt with by Cobb J in the normal way at the outset of the proceedings, but I have kept that matter under review."

John McKendrick KC also reminded himself that in the context of the Family Court, there was an increasing focus on the concept that a meeting between a child and a judge is a visit for the child to meet the judge; and not for the judge to meet the child. "There is something of a read-across of this concept into this adult welfare jurisdiction. For the avoidance of doubt, I did not meet Laura (or hear from her in open court) for the purposes of my need to meet her to consider her capacity, or otherwise."

He said he had not overlooked Laura's participation in the proceedings which would determine decisions affecting her. "First, she is a party. Secondly, I have already met her on at least three occasions (each at her request to meet the judge). I have that background firmly in mind. Thirdly, she is represented in these proceeding by experienced solicitors and counsel. Fourthly, I have ensured there is a hybrid link so she is able to follow the hearing from her placement (and I delayed the start of the hearing for around an hour as various technical problems were worked through to ensure Laura could hear and see the proceedings). Fifthly, I determined to meet with Laura to explain my decision, although I emphasise this was for her to meet me to hear the outcome before others."

The judge also acceded to a request from Laura's counsel that she be able to address the court at the conclusion of the evidence.

"Laura wanted this opportunity and no party opposed it. She spoke in public with members of the public watching her. She was not daunted by this although I do harbour doubts about the appropriateness of an incapacitated person choosing to address the court from her hospital bed in respect of intimate aspects of her life. As was apparent, whilst she was mostly calm, she appeared distressed before the short adjournment on day three and I quickly rose to provide her with a break. As I communicated to the parties after the adjournment, I was giving active thought, of the court's own motion, to making the case management decision to sit in private for the purposes of protecting Laura. I indicated I would hear submissions from the parties and from any member of the public observing before making such a decision. Thankfully, this was unnecessary and Laura presented as calm and collected."

Concluding the judgment, John McKendrick KC made declarations pursuant to section 15 MCA that Laura lacked capacity to:

1. conduct the proceedings;
2. make a decision where to reside;
3. decide whether or not to consent to be accommodated in her current placement for the purposes of being given care and treatment;
4. consent to her care and support regime;
5. decide whether to have contact with her parents;

He added that the purported section 21A (2) MCA challenge to the mental capacity requirement of the standard authorisation was dismissed.

The judge said: “I also make an interim declaration pursuant to section 47 MCA that there is reason to believe Laura lacks capacity to use internet based social media for the purposes of contacting others and make an interim best interest order to supervise such use pursuant to section 48 MCA.”

Lottie Winson