EWJ Dec 2023 - Journal - Page 34
‘Two Ps’ – Navigating
Two Sets of Best Interests
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 [2023]
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.
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.
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:
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.
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.
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.
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.
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.
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.
On the facts of the case before him, Francis J made a
specific point of noting that
42. Both husband and wife in this case, through their
representatives, ask for the two applications to be heard on the
EXPERT WITNESS JOURNAL
10. […] .HH is not a party to AH’s proceedings and that she
is not eligible therefore for legal aid for such purposes. This
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DECEMBER 2023