AH, Re (Serious Medical Treatment) [2021] EWCA Civ 1768

​Application for permission to appeal, and appeal if granted, by family of AH concerning the judge's decision that AH would like to cease medical treatment after he visited her in hospital

AH had been on a ventilator since December 2020 as a result of Could-19. It was not disputed that she had suffered serious neurological damage and that she would recover. In the hearing below her son said she did not wish to stop treatment but when the judge visited her (after the parties had made their respective final submissions and before the Judge gave judgment), he asked her if she wanted peace and decided that she had indicated that she agreed. One of the grounds of appeal was that the Judge's visit was wrongly used by him as an "evidence gathering exercise to establish what AH's views were", which "likely influenced his overall conclusions", and that this rendered his decision procedurally unfair because the parties were not given the Note of the visit, nor given an opportunity to make submissions in respect of the visit, prior to the judgment.

In this judgment Moylan J found that the judge had been right to reject arguments that AH’s wishes before being placed on ventilation should not override the seriousness of her condition now. However he set aside the judgment as the judge had impermissibly used his visit as evidence and the question he had asked was open to interpretation, an interpretation that could not be challenged by the family. The President added further comments about the growing trend for COP judges to visit P’s, stressing that new guidance was necessary to make sure that “there is clarity over the purpose of the encounter and focus on the fact that at all times the judge is acting in a judicial role in ongoing court proceedings which have yet to be concluded”

Read the full judgement on Bailii