Should judges visit hospitals?

An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.

Thirty years ago, 15-year-old 'A' was admitted to hospital with pallor and bruising, having been taken ill on a Saturday afternoon on the football terraces; thereafter diagnosed with leukaemia. Treatment was started, but the child and his family were devout Jehovah's Witnesses and refused to consent to a transfusion of blood products. The hospital authority sought the permission of the court to transfuse the boy. The court was told that blood and platelets were becoming urgently needed; his haemoglobin 4.6 g/dl, white cells 1.5, platelets 37. Evidence was adduced that with a further fall in haemoglobin, the risk to A's life from a stroke or cardiac ischaemia might pose a greater risk than the leukaemia.

For unstated reasons the judge, Ward HHJ, visited A in hospital. He was impressed by A's intelligence but found that there was a '...range of decisions, of which some are outside his ability fully to grasp their implications'. In a conclusion that the judge apparently reached during his visit, based on their conversation, he found that A did not fully understand the consequences of refusing blood transfusion. Accordingly, despite the absence of consent from A or his parents, leave was given to the hospital to administer blood products.

Twenty years later, the Family Justice Council published clear guidance for the meeting between a judge and a child who is the subject of proceedings. This provides that if the meeting takes place before the conclusion of the proceedings, '...the parties (to the litigation) shall have the opportunity to respond to the content of the meeting...'

In December 2020 AH, a 56-year-old woman was admitted with Covid-19, which ultimately caused devastating neurological injury, requiring mechanical ventilation. The hospital applied to the Court of Protection for an order that it was not in her best interests for this management to continue. Some, but not all of her family opposed the Trust's application. The Official Solicitor (appointed by the court to represent AH's interests) submitted on AH's behalf that she should continue to be ventilated outside the hospital environment.

The transcript of the hearing reveals that from the outset the judge was considering going to see AH in hospital, but at no stage was there discussion about the purposes of such a visit, or how, procedurally, the visit would affect or fit in with the hearing. On a number of occasions during the hearing it was suggested, including on the behalf of the family, that the judge should visit the patient. A few days later, the judge visited the incapacitated AH in hospital, spending some time with her, with only a representative of the Official Solicitor (making notes) and a nurse present. The note reveals some of the judge's words: '...I think it may be you want some peace....it is not easy for you to communicate, but I think I am getting the message…I got the clear impression she wanted some peace, she showed me that she did'.

In his subsequent judgement on 3rd September 2021, the judge declared that it was not in AH's best interests for her to continue to be on a ventilator after 31st October 2021, thus leaving time for the family to appeal if they saw fit.

In the litigation that followed, one ground for appeal was that the judge's visit was wrongly used by him as an evidence-gathering exercise which 'likely influenced his overall conclusions'. This would have rendered his decision unfair because prior to the judgement, the parties had no warning of the judge’s bedside conclusions nor an opportunity to submit their own interpretation of the significance of the judge's visit.

Where the continuation of life-sustaining treatment is concerned, it is of great importance that the process leading to the decision is not procedurally flawed. The language used by the judge during his hospital visit was capable of interpretation; that he considered AH to have given him some insight into her wishes. This undermined his decision because it could be 'strongly argued' that he was not equipped to gain an insight into her feelings or wishes during the visit. The family had no opportunity in open court to counter his 'insight'. It could not be said that the visit had no effect on his judgement.

When reflecting on Ward HHJ's visit to A in 1990, these arguments have equal resonance. Did the conclusions that he reached by himself, in the absence of adversarial balance by counsel, impinge on his judgement?

Although there is guidance for the situation where a patient wishes to meet their judge, this was not the situation in the case of AH; she was not in a position to make such a request. It seems that the Court of Appeal (in adult practice) had no guidance to cover these circumstances; but in the future, matters that need to be canvassed with all parties are likely to include whether a judicial visit will occur, it's purpose, the 'housekeeping' surrounding the visit, and how the results of the visit will fit within the hearing.

However, there remains the obvious problem: That a judge whose role is to decide a case can hardly provide impartial evidence to his or her own court. It will be interesting to see if judges continue to visit adults in hospital.

Robert Wheeler
Department of clinical law