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‘Two Ps’ – Navigating Two Sets of Best Interests
- Jan 4, 2024
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by Alex Ruck Keene KC (Hon), Barrister, 39 Essex Chambers and Visiting Professor, King’s College London
In HH v Hywel DD University Health Board & Ors  EWCOP 18, Francis J gave a clear and detailed analysis of how the Court of Protection should proceed in a ‘two P’ situation: i.e a situation where two individuals both appear to lack the capacity to make the relevant decisions, and where those decisions are interconnected. In HH’s case, the individuals concerned were husband, AH, and wife, HH. For reasons that are very relevant to the husband and wife, but not relevant for the wider point, both were the subject of separate s.21A MCA 2005 proceedings. The question was whether they could (or should) be either consolidated or heard together by the same judge, a question which regularly arises, but which has not been the subject of a reported case.
Everyone before the court agreed that the court had the power to consolidate the proceedings or hear them together; the question was whether it should. The local authority – the supervisory body for both s.21A applications – and the litigation friends for both husband and wife considered that the applications should be heard together before the same judge. The Health Board objected. The Health Board’s objections were framed in multiple different ways, but essentially could be reduced down to the fact that the court should not be tempted into a position where it was required to find a compromise between the best interests of two Ps. Francis J was not persuaded:
40. Judges are, in the Family Division, completely used to making decisions about children in families where their interests may conflict with each other. Furthermore, there is a significant danger, in my judgement, that if the interests of the husband and wife such as AH and HH in this case were to be determined by two different judges, there is a real risk that those judges might make different findings of fact. In a case such as the instant one, issues such as whether the parties might be abusive towards each other or encourage each other to drink could be at the heart of a best interests determination.
41. There is an obvious risk that a judge in court A hearing the case of AH might make different factual determinations from the judge in court B next door in respect of HH. This would lead, it seems to me, to an absurd and impossible situation. In my judgement, it is essential to go back to the statutory framework and the rules which govern that. Rule 3.1(2) of the Court of Protection Rules 2017 sets out a list of the Court’s general powers of case management. Among those powers referred to above, the Court may consolidate proceedings and/or may hear two or more applications on the same occasion.
42. Both husband and wife in this case, through their representatives, ask for the two applications to be heard on the same occasion by the same judge. It would, I suggest, defy common sense if different judges were to make different determinations in respect of each of them when they are and have been a couple for decades. Just because they may now have different interests does not mean that I, as the judge, cannot apply a best interests test in respect of each of them.
43. I accept that this may lead the judge, and if that is me, it may lead me, to making a finding that each of them has different needs and different best interests, and so their best interests may conflict. Surely the appropriate thing then that we need to do is to balance these interests, to consider the conflict and to make a proper determination in a holistic manner having regard to the needs of each of them and the best interests of each of them.
44. The idea that a judge sits in one court dealing with AH whilst another judge sits in another court dealing with HH without even consulting each other would, it seems to me, be remarkable and would be regarded by most people, I suggest, as plainly wrong. It is so often the task of the judge to balance interests, and I have already referred to the circumstances which so often arise when dealing with cases pursuant to the Children Act 1989.
45. I have already said that I am not going to consolidate because nobody is asking me to do so. My view is that the same judge should hear these cases having heard the evidence and submission in respect of each case and should make a determination in respect of each of AH and HH. It is, as I have said, entirely possible that they may have different needs and different interests and therefore different decisions have to be made in respect of each of them. As I have said, this is not very different from a judge in the Family Court making decisions in respect of a sibling group.
46. Accordingly, I find that I agree with the submissions made by Counsel respectively for AH and HH and the Local Authority, and there is no reason in principle why both applications cannot be heard concurrently by the same judge at the same time. I agree that this is properly characterised as a case management decision and that there is nothing within the framework of the Mental Capacity Act which expressly prohibits the same decision maker from making a best interests decision on behalf of one or more incapacitated adults whose interests are closely connected and might conflict. Indeed, I go further and find that it is likely to be appropriate in cases such as this for the same court to hear the best interests decisions and that this should be the accepted approach in circumstances such as this.
On the facts of the case before him, Francis J made a specific point of noting that
10. […] .HH is not a party to AH’s proceedings and that she is not eligible therefore for legal aid for such purposes. This means that her litigation friend is not funded by any public body for these proceedings. AH is a party to HH’s proceedings, but his litigation friend is compelled to act on a voluntary basis as no legal aid is available.
11. Not for the first time in Court of Protection proceedings, I find myself dismayed at the absence of Legal Aid in these circumstances where it is plainly needed. Whilst technically the Health Board may not be an arm of the state, to all right minded people I venture to suggest that a publicly funded NHS body is exactly that. I find it hard to imagine that the legislators intended that people in these circumstances should be without public funding. I wish to acknowledge the Court’s gratitude to those who have acted pro bono in this case.
Later, at paragraph 59, Francis J also noted that he agreed with the submission that:
any proposal that AH’s case could be resolved without his wife also being joined as a party would be plainly wrong. I agree that this also raises issues of fairness, natural justice and compliance with article 6 ECHR. I also agree with Mr Hadden that any proceedings which effectively excluded HH as a party would also raise concerns about whether this would represent an unjustified interference with their rights under article 8 ECHR. Mr Hadden submits that the practical difficulties identified in these cases serve to highlight why the Court should direct that the case should be heard together not separately or consecutively. I agree with that submission.
Francis J used some quite uncompromising language in his rejection of the arguments put before by the Health Board, but I would suggest he was right to do so, for the reasons he gave. More ‘existentially,’ the Supreme Court made clear in A Local Authority v JB  UKSC 52 that we not exist in isolation when it comes to considering whether we can process the consequences of our actions. Similarly, what is in a person’s best interests is inevitably going to be viewed in context – and life is such that there will be many situations where that context includes interactions with others who may have their own cognitive impairments.
Alex Ruck Keene KC (Hon), Barrister, 39 Essex Chambers and Visiting Professor, King’s College London
Alex is a barrister, writer and educator, and creator of the website www.mclap.org.uk