Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

The Small Places has moved...

The Small Places has moved to a new home here, including all the old posts. Any posts after 6th March 2014 will appear on the new website, but old posts are preserved here so that URLs linking here continue to work. Please check out the new site.

Saturday, 19 October 2013

The rule of personal presence - implications for the Court of Protection

A chance conversation at the ever-excellent Taking Stock conference has me thinking, once again, about the implications of some recent case law from the European Court of Human Rights (ECtHR), regarding what it calls the ‘rule of personal presence’. The ‘rule of personal presence’ is a well established element of Strasbourg jurisprudence relating to when the requirements of Article 6 (the right to a fair trial) require courts to hold an oral hearing, and when parties to a case should be allowed to attend in person. Recent judgments have considered how this applies in cases concerning a person’s legal capacity, and this will have important implications for proceedings in the Court of Protection in England and Wales.

The general rule of personal presence
The Council of Europe has published a marvellous guide to fair trial guarantees under the European Convention on Human Rights (ECHR); they summarise the circumstances in which a person has a right to an oral hearing and to be present personally. The following summary is taken from their helpful guide.

 In Koottummel v. Austria the Court held that there must be an oral hearing, and written proceedings will not suffice, where the issues are not ‘highly technical’ or ‘purely legal’. However, written proceedings are generally acceptable on appeal provided there are no issues with the credibility of witnesses, the facts are not contested and the parties are given adequate opportunities to put forward their cases in writing and challenge the evidence against them (Schlumpf v. Switzerland, §§66-70; Igual Coll v. Spain, §§28-38). If an appeal court is dealing with questions of fact and law, then personal presence is required (Ekbatani v Sweden). However, even if an appellate court is dealing with only points of law, a party’s presence may still be required if they risk a major detriment to their situation (Kremzow v Austria).

In Göç v. Turkey the Court held that in a case involving the ‘assessment of the emotional suffering’ the applicant should have been afforded the opportunity to explain orally ‘the moral damage which his detention entailed for him in terms of distress and anxiety’. Emotional issues are not technical issues, and cannot be dealt with on the basis of the case file alone. In that case the administration of justice and the accountability of the state required that the applicant was afforded ‘the right to explain his personal situation in a hearing before the domestic court subject to public scrutiny’, and this outweighed considerations of speed and efficiency (§51). The requirement for an oral hearing may be dispensed with in exceptional circumstances (Allan Jacobsson (No. 2) v. Sweden). For example, in connection with minor misdemeanour offences (such as speeding) as long as no questions arise as to the credibility of witnesses (Suhadolc v. Slovenia).

Even in the case of appeals, if the assessment of a person’s state of health or character forms part of the legal opinion, their presence will be required (Salomonsson v Sweden), or where the party is an important source of the factual evidence (García Hernández v. Spain). A person can waive their right to be present, but this waiver must be unequivocal and attended by minimum procedural safeguards commensurate to its importance (Poitrimol v. France).

How does this apply in cases concerning legal capacity?
When one considers that in cases concerning legal capacity the person whose capacity is in question is an important source of factual evidence, the measures which may be imposed (or may have been imposed) may entail some distress and anxiety for him and it involves an assessment of his health and character, it is unsurprising that the Court has emphasised that their personal presence will be necessary in such cases. This is only touched upon in the Council of Europe’s fair trials handbook, so I will expand upon it here. In the avoidance of self-plagiarism, I should say that I discuss this, and other related procedural matters concerning deprivation of legal capacity in a paper which will be published in next year’s volume of the European Yearbook of Disability Law.

In Shtukaturov v Russia, a case where a man had been unlawfully detained through the decision of his guardian to place him in a hospital, the court considered the necessity of his presence in the proceedings where he had been deprived of his legal capacity. The court considered that Mr Shtukaturov’s presence was required for two reasons, as a subject and as an object of proceedings.

As an ‘object’ of the proceedings, Mr Shtukaturov’s ‘participation was therefore necessary not only to enable him to present his own case, but also to allow the judge to form his personal opinion about the applicant’s mental capacity’ §72. In X and Y v Croatia the court elaborated on this, saying:
The Court is aware of the relevance of medical reports concerning persons suffering from impairment to their mental capacities and agrees that any decision based on the assessment of mental health has to be supported by relevant medical documents. However, at the end of the day, it is the judge and not a physician, albeit a psychiatrist, who is to assess all relevant facts concerning the person in question and his or her personal circumstances. It is the function of the judge conducting the proceedings to decide whether such an extreme measure is necessary or whether a less stringent measure might suffice. When such an important interest for an individual’s private life is at stake a judge has to balance carefully all relevant factors in order to assess the proportionality of the measure to be taken. The necessary procedural safeguards require that any risk of arbitrariness in that respect is reduced to a minimum. §85
In that case the court also said that ‘judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons’ (§84). Although the ECtHR does not concern itself with questions of fact, it has on several occasions – including X and Y v Croatia and more recently Lashin v Russia actively criticised the medical evidence which was relied upon for declarations of incapacity in domestic courts.

The other reason advanced by the Court in Shtukaturov v Russia for the presence of the person to whom the proceedings relate was that they are a subject of the proceedings. It was held to be a breach of the principle of adversarial proceedings enshrined in Article 6 to decide the case on the basis of documentary evidence without seeing or hearing the applicant, and his presence was needed to help him present his own case (§73). This theme was taken up again in Salontaji-Drobnjak v Serbia, where Mr Salontaji-Drobnjak’s exclusion from the proceedings meant that he had ‘been unable to personally challenge the experts' report recommending the partial deprivation of his legal capacity’ (§127). The decision to exclude Mr Salontaji-Drobnjak was, according to the Court, arbitrary as it was based on a hypothetical prediction that his appearance would not have been purposeful (§127). Likewise, in Lashin v Russia a violation of the rule of Article 6 was found where the domestic court had excluded Mr Lashin from deprivation of legal capacity proceedings on the basis this would be prejudicial to his health, without seeking a doctor’s opinion on that particular question. The court commented that ‘a simple assumption that a person suffering from schizophrenia must be excluded from the proceedings is not sufficient’ (§82). In Zagidulina v Russia, a case concerning an appeal against deprivation of liberty for medical treatment, the court found that ‘the applicant’s clear and undisputed refusal to undergo any treatment’ meant that the need to ensure her right to be heard ‘was ever more pressing’ (§62).

Yet in one case, the court did find that the applicant’s personal presence was not required in deprivation of legal capacity proceedings: Berková v Slovakia. I personally find it hard to reconcile this case to the authorities I have just discussed, but one key difference may be that there was medical evidence which specifically dealt with Mrs Berková’s attendance in court and recommended it be avoided, on the basis that she had ‘querulous paranoia’ (a rather dubious diagnosis, even within conventional psychiatry). The risk of arbitrariness in the medical evidence justifying deprivation of legal capacity, which was a key issue in the case of X and Y v Croatia, was not discussed by the court.  However, it did establish a principle that a person's exclusion from the proceedings must be made on the basis of medical evidence.

Why is the rule of personal presence so significant?
These rulings are potentially very significant for guardianship courts across Europe. It is not unusual for courts to make determinations regarding a person’s legal capacity, and appoint a guardian, without the judge actually meeting the person in question. A study by the Office of the High Commissioner on Human Rights of guardianship proceedings in Moldova found that ‘Persons placed under guardianship are in practice almost completely excluded from proceedings placing them under guardianship’; one judge stated:
I think that the person’s participation is neither necessary nor useful because we speak about people who are mentally inadequate. They just would hinder the proper conduct of the trial. Do you think they might behave in a civilized manner in the courtroom? Their presence in the court-room is not necessary; the relatives talk for them, while the conclusion is based on the report of the psychiatric expertise.
The prejudice and intolerance of people with disabilities and unusual behaviour shines through in this statement and may underpin some - but not all - exclusions from the courtroom.  In some cases there will be genuine reasons why a person cannot attend court - think, for example, of cases involving a person in a minimally conscious state or in an intensive care unit (although, as I will discuss below, this need not prevent a judge from visiting the person). A major study on legal capacity by the European Union Agency for Fundamental Rights gathered the experiences of persons subject to ‘incapacity’ legislation from across Europe. In one case, a man from Bulgaria described being sedated before being taken to court and complained that ‘they did not try to explain anything to me’. In another, a man from Latvia was excluded from deprivation of legal capacity proceedings on the basis of medical evidence, complaining ‘They did it all behind my back even though legally they were not allowed to’.

There is no data on how often people who are the subject of proceedings in the Court of Protection attend Court. However, it is known that most applications do not result in an oral hearing: data published by the court for 2009 and 2010 show that there were over a thousand hearings in London and the regional courts, but the number of orders issued by the court numbered over thirteen thousand (see my statistical guide to the Mental Capacity Act for more details). This strongly suggests that the majority of judicial decisions concerning legal capacity and the appointment of deputies (the name for ‘guardians’ in England and Wales) occurs without a hearing, and therefore without an opportunity for the ‘personal presence’ of the person whom these declarations and orders relate to.

In health and welfare cases, oral hearings are more common. Yet even here, judicial comments suggest that it is rare for judges to meet the relevant person and they will rely on medical evidence to make determinations as to capacity:
‘Unusually, although not uniquely, this court received evidence from KK herself to assist in determining the question of capacity, not only in a written statement but also orally in court.’
‘On behalf of the applicant, Mr. Dooley submitted that it was unusual for the subject of proceedings in the Court of Protection to give oral evidence. He accepted that the court was entitled to consider any evidence in coming to its decision but submitted that the medical and psychiatric opinion, including the opinion of the independent expert Dr. TH and the evidence of the social worker JL, was consistent in finding that KK lacks capacity to make decisions regarding her care and residence. In those circumstances, Mr. Dooley invited the court to prefer the evidence of the professionals to that of KK herself.’ CC v KK (2012), §44, §51
‘In most cases that come before the Court of Protection, at any rate in my experience, the assessment of capacity by one or more psychiatrists is regarded as determinative. But those are generally cases in which the patient himself or herself is not positively and strongly asserting, and actually giving evidence, that he or she has the required capacity. In the present case, as I now reveal, I have reached a different overall conclusion as to capacity from that of the psychiatrists, Dr T and Dr Smith, and indeed the husband and the mother.’ Re SB (2013) §36
Interestingly, these cases were two rare examples (A Local Authority v TZ being another) of the Court of Protection overturning unanimous medical evidence as to incapacity. Without the person’s presence, it is very difficult to see how the Court could have achieved this, reaffirming the importance of personal presence as a safeguard against arbitrariness in over-reliance on medical opinion.

Nothing in the Court of Protection Rules 2007 prevents the relevant person from attending court, however there is no explicit requirement or presumption in favour of them doing so. Rule 88 provides:
(1) The court may hear P on the question of whether or not an order should be made, whether or not he is a party to the proceedings.
(2) The court may proceed with a hearing in the absence of P if it considers that it would be appropriate to do so.
In contrast, the new Irish Assisted Decision-Making (Capacity) Bill (see my post here) would (if it is passed into law) create a statutory presumption in favour of hearings taking place in the presence of the relevant person, setting out circumstances where that presumption may be departed from (section 107).

It may be difficult in a practical sense for the person to attend court (this is one of many reasons why there are concerns that the Court of Protection does not have a strong enough local presence – see the discussion in The Report and the President of the Family Division and the Court of Protection, Sir James’ Munby’s, proposed reforms). This is especially problematic for a population who may have mobility difficulties, or who may also be ill. The Court of Protection's general case management powers (rule 25) permit it to ‘hold a hearing and receive evidence by telephone or any other method of direct oral communication’; it seems to me that this rule might permit holding hearings in locations which are not necessarily a courtroom – perhaps even in a hospital or care home. The rules do not prohibit judges from visiting the relevant person, and in cases such as W v M judges have reported visiting them outside of the hearing.

So nothing in the rules prevents the Court complying with this rule of personal presence, but certainly the rules could be adjusted to require better compliance. The real difficulties with complying with the rule of personal presence is likely to be resources and training. And when I say ‘real difficulties’, I mean, it is almost impossible to see how judicial resources could extend to visiting every single person where an order regarding legal capacity could be made without a significant injection of financial resources into the Court and extensive recruitment efforts. It might be possible with some serious striving in the health and welfare cases, but it is hard to see how this could be achieved with the tens of thousands of deputyship hearings – especially since many of these are no longer handled by a judge but an authorised court officer. But, there it is, this is what the law requires and deputyship proceedings are in fact the most closely analogous to the kinds of proceedings the European Court of Human Rights was considering when it elaborated the rule of personal presence in the context of legal capacity.  If Göç v. Turkey is anything to go by, the rule of personal presence may not be outweighed by considerations of speed and efficiency.

The other issue is whether the judges of the Court of Protection – and the High Court judges who often sit on these cases – have the requisite training to enable a person to effectively participate in the proceedings. Effective participation is another requirement of the ECHR’s fair trial guarantees (see the Council of Europe guide, referred to above), and of course it is a requirement of Article 13 of the UN Convention on the Rights of Persons with Disabilities that reasonable adjustments are made to facilitate this:
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
There is work in other areas of the justice system on the kinds of reasonable accommodations which are necessary to enable people with disabilities to attend court, and there may well be lessons which could be learned from the mental health Tribunal system. No doubt many judges of the Court of Protection who have invited the relevant person into their courtroom, or who have visited them in person, have wisdom on this issue that could be tapped. Judges are not the only professionals in the courtroom of course, and it may be that solicitors, barristers and litigation friends working within the Court will also need training to ensure they can help the relevant person to effectively participate. Again, many will already have some experience and wisdom on this matter, which no doubt they could share. This is one of the key issues I will be exploring with colleagues at Cardiff Law School in a new project (funded by the Nuffield Foundation) on the Court of Protection, watch this space...


  1. Hi Lucy, I think this is a really important issue. The outcome of KK's case depended so much on Baker J being able (and wiling) to form his own impression of her capacity.

    Two thoughts for your new project, based on what we heard at "Taking Stock":

    1) Should there be a standing case management direction in CoP re: personal presence? I guess that some judges might feel that it clouds the issue, introduces bias etc. - what is workable here?

    2) At "Taking Stock" Baker J said that the CoP judges need more advice and support from social workers etc. to communicate with P. What would this look like in practice, both in individual cases and in the development of rules and policy?

    Hope this is helpful.

    Martin Sexton

    1. Hi Martin,

      I think the COP will need to look at these rulings, but I have no idea how they will accommodate them given the resources issue.

      I'm going to give a researchers'-answer to your second question as to what support/advice judges would need in practice, and say there are lots of possible options which could be explored. Lots of professional groups (including social workers) would have useful advice, as would experts by experience. The difficulty is likely to be that judges themselves are extremely busy, and may not have time to receive all the advice that others would like to give them! Also, the diversity of relevant persons may be an issue.

      We will be (hopefully) conducting focus groups with practitioners, and training will be one of the issues we'll be looking at... Give me a shout if you're interested.