EWJ Dec 2023 - Journal - Page 35
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.
direct that the case should be heard together not separately or
consecutively. I agree with that submission.
Comment
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
[2021] 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.
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
Author
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
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