“Two Ps” – a worked out example

Not enough judgments of District Judges are published.  This is in part because very many decisions that they make are set out in oral judgments, rather than in reserved judgments (i.e. those handed down after the hearing, and written up after the hearing by the judge).  It is also in part because of the extraordinary pressures of time on such District Judges.  However, the end result is that the body of case-law does not capture many of the realities of the decisions that are taken up and down England & Wales by the judges who hear the vast majority of cases before the Court of Protection.[1]  It is therefore all the more interesting to see the judgment of District Judge Simpson in Re MA & AA (Re Section 21A of the Mental Capacity Act 2005) [2023] EWCOP 65, which recently appeared on Bailii.  As a decision of a District Judge, it does not have precedent value, but is a very thorough ‘worked example’ of the ‘two P’ scenario addressed in HH v Hywel Dda University Health Board & Ors [2023] EWCOP 18, where Francis J set out how the Court should proceed.  After confirming that proceedings should be consolidated, and that the same judge should hear both sets of proceedings, Francis J had held (at paragraph 43) that:

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.

The two – conjoined – decisions before District Judge Simpson are sufficiently complex that they cannot easily be reduced to a summary but they do show the careful and holistic resolution of a very difficult situation where it was not possible (on the face of the evidence) to meet the care needs of the two spouses with dementia in the same place, one spouse no longer seemed to recognise the other, and video calls between the two seemed to cause nothing but pain to the spouse whose dementia was less advanced.

[1] For more on this, see this article. The Open Justice Court of Protection website contains many blogs of hearings before such judges which give invaluable insights into these cases, but as I know that the team behind the project would be the first to acknowledge, there is a difference between a report of such a hearing and the definitive legal record of a judgment.

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