Nageena Khalique QC and Sophia Roper explain what it was like to take part in a trial concerning withdrawal of life sustaining treatment that was heard by Mr Justice Mostyn with five parties and at least 20 participants over Skype for Business.
Back in the heady days of December 2019, before the world ground to a halt, Keehan J presided over a directions hearing in a serious medical treatment application brought by a CCG. A dispute had arisen as to whether or not it was in the best interests of A, a man in his 70s who suffered a stroke in 2016, to continue to receive clinically assisted nutrition and hydration (CANH). A’s daughter believes CANH should be removed; his GP thinks it should stay in place. A is not in a prolonged disorder of consciousness: despite significant impairment, he communicates with those caring for him in gestures and occasional words, and enjoys seeing animals and children, and hearing poetry.
In itself, this would be an unusually sensitive case for the Court of Protection, and Keehan J listed it for four days, including a day of judicial reading time. As preparation progressed, it was clear that it was going to be a tight timetable. Between them, the five parties (CCG, A, represented by the Official Solicitor, A’s daughter, A’s GP, and the local authority) were calling eleven witnesses to give oral evidence, including three independent expert consultants; all five parties would be making closing submissions; and the evidence available to the court ran to well over 4,000 pages. What makes this case even more unusual is that the judge listed it to start on Tuesday 17 March 2020, less than 24 hours after Boris Johnson had told the nation to avoid all non-essential contact in the bid to stem the rising tide of Covid-19.
A suffered a stroke nearly four years ago, and his condition has remained essentially unchanged for over three years. He is not in any pain. Given the current crisis, one might have expected that his case would be quietly pushed back in the immediate response to the crisis, to be heard later in the year when everyone could convene in court in the Midlands as planned. Not so …
Mostyn J called an urgent telephone hearing with the parties on the morning of Tuesday 17 March to discuss whether the hearing could realistically go ahead in Nottingham Civil Justice Centre, and if not, whether conducting the trial remotely was permissible. The Judge was diligent but sensitive in his questioning – did anyone have any particular condition which might make this difficult? Who would have to travel using public transport? Did anyone have to use a hotel or accommodation where self-isolation was not entirely feasible? Were their personal or domestic commitments which meant being present physically at court would cause difficulty? Did people have to care for elderly or infirm relatives? It was an unusually intimate conversation, in which everyone was able to share individual anxieties about how coronavirus might be affecting our personal and professional lives.
Amidst the discussion about our gravest concerns, less important but mildly amusing worries began to surface – would we need to be robed? (Nageena chirped in ‘no pyjamas’, something she cannot ever imagine saying in court!) Would we need to hide our coffee? (Drinking but not eating was permitted.)
Having heard us all, the Judge said that it was “unthinkable” that everyone should attend court in person. But he was – rightly – determined that the hearing should go ahead, and so asked the lawyers to find a way of doing so over Skype.
One of the parties’ solicitors, M, stepped up heroically to the challenge (we are not naming him because we suspect he is already inundated in requests). He set up a Skype for Business meeting which everyone could join via laptop or tablet. A test run was held the same afternoon. Crucially, this included the witnesses, to make sure the evidence could run smoothly. We discovered the sound quality was better if we all wore headphones, and if as many people as possible muted their microphones. Those who could see themselves had a chance to position their screens and improve their backdrop to make sure only tasteful pictures or serious files (with no names revealed) were on display.
There were glitches, of course. Sophia couldn’t be seen on the video and appeared as just an icon. (She was hoping to carry on in a woolly jumper, but managed to get in via a second route, as a guest.) But basically, it looked as though we could go ahead. The Press Association was invited to listen in, to ensure transparency, just as if we had been in open court.
By the next morning, glitches ironed out, we were all online and hearing the first witness within an hour of starting. And from there on, with a measure of flexibility and understanding, it was pretty plain sailing. The ‘meeting’ was kept open all week so we only had to use the same link to join each time. Everyone managed to access the hearing; there was one hiccup, but we changed the order of witnesses so only lost a few minutes. The picture could be varied, so we saw each witness on full screen; at other times the picture showed whoever was speaking – so when the judge spoke we could always see him. Having a group of smaller pictures on a split screen was useful for pre hearing discussion. Twice someone lost signal, but it was immediately spotted by M, the presenter, so everyone waited for them to get back in. We saw every witness (pleasingly, we also saw three dogs and a cat). Additional documents were circulated by email. M even managed to upload a video for everyone to watch. Counsel and clients communicated separately by text and email, at times muting the microphone to have a brief chat. The hearing was recorded on Skype (improvements to this were learned daily) and the recordings uploaded to a common sharefile.
With a very slight extension to the court day (starting at 10am and finishing on two days at 5.30pm), we finished in the allotted three days, and now await judgment.
Reflecting on the experience, what did we miss? In truth, nothing that mattered. The terms of the transparency order were dealt with at the outset. Pre-hearing group discussion can be done through Skype by parties joining the meeting earlier than the judge. Using a computer for the hearing meant everyone’s phone was free for the equivalent of notes being passed during examination, or murmured instructions from the row behind. Neither the witnesses nor the parties could see the judge except when he spoke, so the conventional advice to watch the judge’s pen could not be given, but he could (and did) say when it was necessary for someone to slow down or pause for him to take a note.
What did we gain? Most importantly, judicial time was not wasted, nor a hearing listed for four months lost. It was a relief to everyone a sensitive and difficult case was not adjourned, possibly for months and months. No one had to compromise their health: before and during the hearing, some involved were self isolating, with no impact on the trial. No one had to travel or stay overnight, saving significant costs, public money in this case. Even with an extended court day, all the lawyers involved saved a huge amount of travelling time.
On a human level, it felt comfortable and familiar relatively quickly – though neither of us enjoyed seeing ourselves spotlighted when all other faces disappeared off screen. There was some interesting feedback too from one of the experts – did we realise how much we were touching our faces? - and a timely reminder to curtail the habit as a COVID-preventative measure. We suspect witnesses felt less intimidated: many wore casual attire and sat in their homes, responding to the questions, but not having the full glare of the court on them. But the questioning was still rigorous and at times challenging, as it should be, particularly as here, when dealing with potentially life and death decisions.
This may well be the way forward for the next few months. Skype for Business looks to be on the way out for Microsoft, to be replaced by Teams, but it is clear that the judiciary are also prepared to consider other ways of conducting remote hearings such as Zoom: guidance just published for the Civil courts refers encouragingly to a “non-exhaustive” list.
We will learn as we go along. A degree of tolerance will be necessary, and we are grateful to Mostyn J for his sensitive management of the case. But in the end, this could be the way forward for many cases once the pandemic is finally over. COP judges are busy, and COP practitioners often have to wait weeks or months for a hearing date. They spend hours travelling to distant courts for a one hour directions hearing, and more hours in small airless rooms agreeing the terms of an order which, with proper attention, could have been agreed several days previously. If every hearing had an allotted time slot, with limited scope for asking a kindly judge for “just another 10 minutes”, we might save a lot of public money, and improve the working conditions of the lawyers involved. It is good to look for the glimmers of a silver lining in the current dark times, and perhaps this is one.
One warning though, remember to mute the sound during breaks and if you don’t want to be heard – just like in court, the recording continues and it is easy to forget where you are. Cats, dogs and family pets take note.
Nageena Khalique QC and Sophia Roper are barristers at Serjeants’ Inn. Nageena was instructed by the applicant CCG. Sophia, who is Deputy Head of the Serjeants’ Inn Court of Protection Team, was instructed by the Official Solicitor on behalf the respondent, A.
This article first appeared in the New Law Journal.
Current Guidance (this many change):
In these unprecedented times the CoP team is available as usual for remote access hearings. The team at Serjeants' Inn already have significant expertise with remote hearings not only by Skype and can also offer 'Blue Jeans' connections organised by chambers IT. The sets experience is embedded in the team, from the large number of emergency medical treatment applications with out of hours judges which it has conducted by telephone for many years.