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First-ever Skype hearing in Court of Protection ends in refusal to switch off life support

Monday, 30 March, 2020

Between 17 and 20 March, Mostyn J presided over the first case in the England and Wales Court of Protection to be held entirely remotely via Skype.

The case concerned a Nottingham woman's application to withdraw clinically assisted nutrition and hydration from her mentally incapacitated father, now in his 70s, who had had a severe stroke. His daughter, referred to as SJ, gave evidence that, before his stroke, her father had several times expressed the wish that he would not wish to be kept alive if he was just a 'body in a bed'. He had spoken about the indignity of being in such a situation. He had also expressed a wish to die after having his stroke, and had on several occasions refused food via nasogastric tube.

The daughter thus wanted CANH to be withdrawn because she believed that to be her father's wish, though it was not her own.

However, her application was opposed by the patient's GP and the Official Solicitor, who brought evidence that he was still capable of enjoying certain aspects of his life, including certain foods and drinks, washing, the company of animals and children, music and watching rugby.

Mostyn J accordingly rejected SJ's application (A Clinical Commissioning Group v AF, 2020 EWCOP 16).

The most important feature of the case, however, was the way the hearing was conducted. It was originally listed to be heard in court in Nottingham, but the coronavirus emergency made a traditional physical courtroom trial extremely risky to the participants and therefore unacceptable, said Mostyn. So, with the agreement of all participants, he decided that the hearing would be by Skype. It was organised and managed by DAC Beachcroft in Bristol, the solicitors for the GP, and according to Mostyn it 'proceeded almost without a hitch', despite having 17 continuously active participants at the hearing, plus 11 witnesses and two journalists. Participants were generally in their own homes, scattered all over the country.

Mostyn was provided with an e-bundle made available via ShareFile containing 929 pages of evidence and position statements. The only slight problem was that a few of the recording files became corrupted by virtue of their size, said Mostyn. He drew the lesson for the future that a sequence of recordings should be made, none exceeding about 30 minutes.

The hearing was not, however, considered ideal by all parties. One, Celia Kitzinger, an academic who attended voluntarily to support SJ, said 'what we found in practice was that a preoccupation with the technology distracted people's attention from the substantive content of the case'. It was, she said, easy for the lawyers in the case to forget that SJ remained in the virtual courtroom throughout the hearing. Also there was often an audio time lag, so the judge or counsel doing the questioning would think that someone had finished speaking when in fact they had not, so would begin to speak with what was experienced by the witness as an interruption.

SJ herself said it felt like a 'second-rate hearing' and she felt the technology had lost her an opportunity to influence the court, being unable to get her message across as she would have done in person, and that it 'felt like a stop gap to ensure a box was ticked'.

Notwithstanding these and many other criticisms, Mostyn commented that 'in the current national crisis, it must be expected that hearings will be conducted remotely in this way as a matter of routine practice'.

Sources

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