Is it appropriate to make final declarations during an interim hearing?

The recent case VT -v- NHS Cambridgeshire And Peterborough Integrated Care Board & Anor [2024] EWHC 294 (Fam) (14 February 2024,) considered whether it was appropriate to make final declarations on capacity and best interests during a case management hearing and helpfully provides guidance on the circumstances in which it might be appropriate (or inappropriate) to do so.

Background to the case and appeal

For context, this case concerned VT who was said to have a historic diagnosis of schizophrenia. Cambridgeshire County Council (CCC) made an application to authorise a move from VT’s own home to a residential setting as the conditions in her own home were said to be putting her at risk. The move was authorised but VT expressed a wish to return home. A section 49 report was to be obtained and Cambridgeshire and Peterborough Integrated Care Board (the ICB) were asked to set out the service it would be willing to fund to facilitate a return home for VT, and details of any other available options.

An hour before the next directions hearing, the ICB notified the other parties that it intended to invite the court to make final declarations and conclude proceedings. Those representing VT and CCC argued the matter should be listed for a contested hearing. The section 49 report had not been filed at the time of this hearing.

The Circuit Judge granted the ICB’s application and made final declarations of capacity and best interests. The Circuit Judge concluded VT lacked capacity on the evidence and there was no point in waiting for the section 49 report as it would not add very much to the picture which was ‘fairly clear’ from other evidence. The Circuit Judge concluded that although VT wanted to go home, this was not in her best interests and further witness evidence would only confirm what was being set out in court in submissions and so there was no purpose in prolonging the proceedings.

Those representing VT, supported by CCC, appealed this decision and Mrs Justice Arbuthnot heard the appeal. Mrs Justice Arbuthnot held that the Circuit Judge reached decisions which, in principle, were possible but which were not sustainable on the material before the Court. VT’s interests were not properly considered and, in the circumstances, it was not appropriate to reach such an important decision based on submissions. In allowing VT’s appeal, Mrs Justice Arbuthnot concluded that the decisions were taken without the cogent evidence required and in a procedurally unfair manner.

As a result, Mrs Justice Arbuthnot, sets out some guidance for determining when it might be appropriate to make final declarations at a case management hearing.

The Guidance

First and foremost, Mrs Justice Arbuthnot refers to the Court of Protection Rules 2017 which set out the overriding objective, including dealing with a case justly and at proportionate cost. Any case should be dealt with expeditiously and fairly so far as it is practicable ensuring that P‘s best interests are properly considered, and any case should be dealt with in proportion to the nature of the issues.

The Court has a duty to actively manage cases on its own initiative or on application by a party, which allows the court to consider the appropriate pathway for the case. Courts are to ensure that delay is avoided, costs are kept down and to decide promptly which ‘issues need a full investigation and hearing and which do not.’ The Court should deal with as many aspects of the case as it can on the same occasion.

The Court of Protection does not have an express power to give summary judgment but such powers exist by virtue of rule 2.5 which provides for the application of the Civil Procedure Rules.

It is therefore plainly possible for the Court of Protection to:

1. Decide matters of its own motion;
2. Decided which issues need full investigation and hearing, and which do not; and
3. Exclude any issue from consideration and determine a case summarily of its own motion.

However, Mrs Justice Arbuthnot sets out that, in cases where such powers are contemplated, at a stage where the determination would dispose of the case, two matters will need to be given careful consideration:

1. Whether the court has sufficient information to make the determination; and
2. Whether the determination can be reached in a procedurally fair manner.

Expanding further, the following points can be distilled from Mrs Justice Arbuthnot’s guidance:

• Deciding whether the evidence has reached a point in which the court can make a determination is a case management decision and whether the evidence has reached that threshold will necessarily depend on the facts of each case.
   
• The requirements of procedural fairness are not set in stone and will be informed by the context. For example, notice to the parties is an element of procedural fairness. Whether such notice is required and how much notice is needed will depend on the context. (In VT’s case, procedural fairness required more than 1 hours’ notice that final decisions might be made.) 
   
• If an early final hearing is contemplated by the Court then an approach might be to include a recital to that effect in an earlier order. 
   
• In some cases notice that a final determination is contemplated might alter the evidence put before the court, but in others it might have no impact on preparation of the case. This is likely to influence whether it is appropriate to make final declarations at an interim hearing.
   
• The court must take a proportionate approach to the issues and to case management when considering what requires investigation and what does not.
   
• P’s interests must be properly considered, alongside cogent evidence, particularly where the effect of any decisions made would deprive P of a fundamental freedom or right. 

It is therefore important to be aware of this guidance in cases where final declarations might be sought at an interim hearing. Whilst the circumstances will differ from case to case it is necessary to ensure the Court has sufficient information before it, and that there is procedural fairness which is very likely to require sufficient notice to the other parties.