In this Court of Appeal case concerning judicial visits to P, Katie Gollop QC represented the NHS Trust (instructed by Kennedys) and Nageena Khalique QC represented AH instructed by her litigation friend, the Official Solicitor.

Read Katie Gollop QC’s analysis of the case below:

Judicial visits to P in the Court of Protection: First, work out its purpose

Re AH [2021] EWCA Civ 1768 (25 November 2021)

In Re AH,[1] for the first time the Court of Appeal considered judicial visits to P in the Court of Protection, set out the matters that will need to be determined before any such visit takes place, and called for guidance, similar to that in the Family Court with regard to judges meeting children subject to contested proceedings.

Pending such guidance, and per Moylan LJ (see §75), the following matters will need to be determined before any visit to P takes place and after submissions from the parties:

1. Whether the judge will visit P;
2. The purpose of any visit;
3. When the visit is to take place and the structure of the visit (in other words, how the visit it to be managed; what is to happen during it; and whether it is to be recorded and/or a note taken);
4. What is to happen after the visit. This will include, depending on the purpose of the visit, how the parties are to be informed what occurred; when and how this is to happen; and how this will fit within the hearing so as to enable it to be addressed as part of the parties’ respective cases.

The Facts

In December 2020, AH, who has four adult children, was admitted to hospital with Covid-19. The virus caused her devastating, permanent injuries to her brain, nerves and muscles, unable to speak or move other than small movements of the head and neck, in a minimally conscious state plus, and dependent on mechanical ventilation.

The hospital became concerned that further treatment with ventilation was causing distress and was not in her best interests. It issued proceedings for a declaration that it was lawful and in AH’s best interests not to be provided with further such treatment.

The application was heard by the Vice President of the Court of Protection.[2] The two experts instructed independently reached the view that more treatment was not in AH’s best interests. Some of her children did not agree and pointed to her faith as a Muslim and the pleasure she derived from the company of her family as reasons why AH would wish to continue to be ventilated, and why it was in her best interests for that treatment to continue. The application was also opposed by the Official Solicitor.

After the conclusion of the evidence, and having received final written and oral submissions, the Vice President visited AH in hospital and saw and spoke to two of her children there. Throughout, the Judge was accompanied by a solicitor from the Office of the Official Solicitor who made a record. That record was not sent to the parties and the Judge did not communicate with the parties about what happened during his visit. He then gave judgment deciding that there should be time to enable the family to gather round AH, and that ventilation should not continue after the end of October 2021.  AH’s children appealed that decision.

The Court of Appeal was unable to uphold the Vice President’s decision and directed that it be set aside and that there be a re-hearing.

What Went Wrong

There were four grounds of appeal all of which were unsuccessful. Shortly before the appeal hearing, the appellants received the Official Solicitor’s Note of the Judge’s visit to AH. That led to a fifth ground of appeal which did succeed (see §4):

“the Judge’s visit was wrongly used by him as an “evidence gathering exercise to establish what AH’s views were”, which “likely influenced his overall conclusions”, and that this rendered his decision procedurally unfair because the parties were not given the Note of the visit, nor given an opportunity to make submissions in respect of the visit, prior to the judgment.”

The Court of Appeal agreed that it was possible that the judge had used the visit to gather evidence and that to ensure procedural fairness, the parties needed to be informed of the content of the visit and an opportunity to make submissions.

The President will now invite the CoP’s multi-disciplinary forum “the Hive” to consider judicial meetings with P so that a new[3] Practice Direction or Guidance may be issued. Pending that, he endorsed the approach described by Moylan LJ.

[1] [2021] EWCA Civ 1768 –  judgment here
[2] [2021] EWCOP 51 – judgment here
[3] The existing guidance issued by Charles J in 2016 on Facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings (here) only touches briefly at §14 on meetings with the judge.

For Nageena Khalique QC’s blog, please see our UK Medical Decision Law Blog here.

Congratulations to John de Bono QC  (shortlisted for Clinical Negligence Silk of the Year), Neil Davy (awarded Clinical Negligence Junior of the Year) and to  Elliot Gold  (awarded Professional Discipline Junior of the Year).

We are also delighted to be awarded Clinical Negligence Set of the Year, and to be shortlisted for Professional Discipline Set of the Year.

Many thanks to all of our clients who participated in the directory research process, and of course to James Cowdell, Eleanor Crundwell, Eleanor Burt, Sam Williamson and the rest of the team at the Chambers & Partners for all their careful work.

We are delighted to announce that Emma Sutton has been appointed as a Fee-Paid Judge of the First-tier Tribunal assigned to the Health, Education and Social Care Chamber with immediate effect. Emma is delighted to add this part-time judicial appointment to her practice, alongside her recent appointment as an Employment Judge.

Emma will continue to practise from Serjeants’ Inn Chambers and accept instructions in the usual way.  She has extensive experience in the Court of Protection, public and administrative law, education and inquest and inquiries work.

To read more about Emma’s practice, please see here.

Emma Sutton has recently successfully completed the ‘25 for 25’ Challenge which involved undertaking a significant number of hours of pro bono work through Advocate. Emma was instructed by the first respondent mother in Great Ormond Street Hospital for Children NHS Foundation Trust & Ors v MBC & Ors [2021] EWHC 2574 (Fam) before Mr Justice Peel. The case involved a serious medical treatment application where declarations were sought that it was lawful and in the best interests of a 19 month old child who sustained a profound neurological injury at birth for ceilings of care to be imposed; including any form of invasive ventilation, escalation of intensive care support or CPR.

Please see here for the judgment.

Mr Justice Peel stated within the judgment that he ‘[could] not forbear from comment that it seems to me to be little short of scandalous that in cases of serious, and often urgent, medical treatment for children, where issues of life and death are frequently considered, parents such as these have little option but to rely upon the goodwill, availability, and dedication of members of the Bar acting for free’.

In Great Ormond Street Hospital for Children NHS Foundation Trust & Ors v MBC & Ors [2021] EWHC 2574 (Fam), Michael Mylonas QC was instructed by applicants, Emma Sutton was instructed for the first respondent mother, and Neil Davy and Susanna Rickard for the second respondent father. Both parents were represented on a pro bono basis through Advocate.

The case was before Mr Justice Peel and involved a serious medical treatment application where declarations were sought that it was lawful and in the best interests of a 19 month old child who sustained a profound neurological injury at birth for ceilings of care to be imposed; including any form of invasive ventilation, escalation of intensive care support or CPR.

Having heard the clinical evidence, the first respondent did not oppose the application as she did not consider that her daughter’s life should be prolonged at all costs (acknowledging that the suffering her daughter felt may outweigh what little benefit she received from her life). The father opposed the application in terms of  the withholding “Any invasive forms of ventilation”.

The critical issue in the case by its conclusion had narrowed to one aspect of the relief sought, namely whether withholding of invasive ventilation should be authorised. The court ultimately granted the application. The case involved cultural and religious issues in addition to complex medical issues. Please see here for the judgment.

Of note, in relation to the advocates for the parents appearing pro bono, Mr Justice Peel said this:

1. All parties have been represented by counsel, to whom I am grateful for their clear and able written and oral submissions, as well as their immense courtesy towards all the witnesses, and their sensitive handling of difficult human issues. I would like to acknowledge in particular Ms Sutton, on behalf of M, and Mr Davy and Ms Rickard on behalf of F, who have acted pro bono, dedicating a great deal of time, energy and commitment to these intensely personal and demanding proceedings.
2. I cannot forbear from comment that it seems to me to be little short of scandalous that in cases of serious, and often urgent, medical treatment for children, where issues of life and death are frequently considered, parents such as these have little option but to rely upon the goodwill, availability, and dedication of members of the Bar acting for free.

The Brook House Inquiry is a statutory public inquiry set up to investigate mistreatment of individuals who were detained at Brook House Immigration Removal Centre (IRC) between 1 April 2017 and 31 August 2017, as shown in the BBC Panorama programme “Under Cover: Britain’s Immigration Secrets” aired on 4 September 2017. The purpose of the Inquiry is to understand what happened at Brook House IRC identifying responsibility for any mistreatment and to identify learning and to make recommendations that would help to prevent a recurrence of such events. For the purposes of the Inquiry, ‘mistreatment’ is interpreted to mean treatment contrary to Article 3 of the European Convention on Human Rights, namely torture, inhuman or degrading treatment or punishment. The Inquiry will examine a range of issues including whether methods, policies, practices and management arrangements (both of the Home Office and its contractors) caused or contributed to any identified mistreatment; whether any changes to these would help to prevent a recurrence of any identified mistreatment; whether any clinical care issues caused or contributed to any identified mistreatment; whether any changes to clinical care would help to prevent a recurrence of any identified mistreatment and the adequacy of the complaints and monitoring mechanisms provided by Home Office Immigration Enforcement and external bodies (including the centre’s independent monitoring board and statutory role of Her Majesty’s Inspectorate of Prisons) in respect of any identified mistreatment.
Sarah was appointed first junior counsel to the Inquiry in April 2021.

Serjeants’ Inn Chambers is a leading civil law set specialising in high-profile medical, police, professional discipline, regulatory, business & specialist crime and public law cases, often involving important legal, ethical and social issues.

Our barristers and staff adopt a professional, progressive and friendly approach. Since 2016, Serjeants’ Inn has expanded its silk team from 9 to 22 QCs, recruited 28 new tenants and won 30 awards. We were one of the first sets to be awarded the Bar Council’s Certificate for Excellence in
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We are looking for a bright, highly motivated individual to join our Client Care Team (currently three people) for a fixed term contract of 12 months. Suitable candidates will have strong communication and organisational skills. They may have previous client management, marketing, communications or media experience or they may be a recent graduate and/or current LPC/BPC student looking to gain experience in an award-winning, multi-disciplinary team. Part-time/ flexible working options may be available. Knowledge or experience of law and/ or the legal profession would be helpful but is definitely not a pre-requisite.

The Role:
Assisting the Client Care Team with client service initiatives in addition to a range of marketing activities including:

• organisation of Chambers’ promotional and knowledge sharing events, webinars, seminars, conferences and social events;
• production of annual submissions to legal directories;
• preparation of articles, press releases, advertisements, etc;
• preparation of promotional material and marketing collateral;
• regular updating and maintenance of Chambers’ website, blogs, podcasts and social media output, including analytics;
• regular review and maintenance of Chambers’ client database, CRM packages and intranet; and
• ad hoc project work.

The Person will be:

• calm and cheerful under pressure with a clear ability to adapt and prioritise in the context of a busy and changing workload;
• careful, conscientious and with close attention to detail;
• creative and with an eye for design;
• discreet, with an absolute commitment to confidentiality;
• able to work with minimal supervision, knowing when to seek assistance;
• ability to work with and successfully influence multiple stakeholders, taking into account their different views and priorities; and
• skilled in the use of social media, databases and standard IT packages (Outlook, Word, Excel and Adobe Acrobat).

A competitive salary commensurate with experience is offered along with a range of staff benefits including generous holiday entitlement, workplace pension and travel and cycle loans. Applications supported by CVs should be sent to ibiggs@serjeantsinn.com.

Chambers undertakes all recruitment in accordance with its equality and diversity policy.

We are pleased to announce that Hannah Hinton appointed to the Independent Safeguarding Panel for the Football Regulatory Authority. This is the second Independent Safeguarding Panel Hannah has been appointed to , the first being for UK Athletics.

Wayne Rooney and other footballers join together in this video to highlight the importance of this panel.

Hannah’s practice encompasses complex extradition work, inquests, public law, police law, professional discipline and financial crime. She also assists clients in cases concerning the Mental Health Act, Mental Capacity Act, the Education Act and the Education (Special Educational Needs) Regulations. Click here to read more about Hannah’s practice.

In November 2016, Stephen Port was convicted of the assaults by penetration, rapes and murders of Anthony Walgate, 23, Gabriel Kovari, 22, Daniel Whitworth, 21, and Jack Taylor, 25, as well as the rapes of three men, ten counts of administering a substance with intent, and four sexual assaults.

The hearings of the inquests into the deaths of Mr Walgate, Mr Kovari, Mr Whitworth and Mr Taylor commenced today before HHJ Munro QC, sitting with a jury. These are among a small number of Judge-led inquests: https://www.judiciary.uk/related-offices-and-bodies/office-chief-coroner/judge-led-inquests/

James Berry is instructed by the Metropolitan Police Service, led by Peter Skelton QC along with Gideon Barth.

Edward Pleeth appeared in the Divisional Court in 2017 for HM Senior Coroner for East London in her successful application to quash the inquisitions in the inquests she had conducted into the deaths of Mr Kovari and Mr Whitworth before Port was arrested.

For media see: https://www.bbc.co.uk/news/uk-england-london