REMOTE HEARING IN THE COURT OF PROTECTION: 17 PARTICIPANTS, 11 WITNESSES AND TWO JOURNALISTS: LESSONS TO BE LEARNT
I am grateful to Dr Penny Cooper for pointing out to me that the decision of Mr Justice Mostyn in A Clinical Commissioning Group v AF & Ors  EWCOP 16 involved a hearing remotely. It contains an important comment about a practical approach to the recording of files on Skype.
“There were 17 continuously active participants at the hearing and in addition 11 witnesses were heard. Further, two journalists observed the proceedings. The participants and witnesses were scattered all over the country from Northumberland to Cornwall, Sussex to Lancashire”
“The lesson is that a sequence of recordings should be made, none exceeding about 30 minutes.”
The judge was deciding an issue as to whether someone had capacity to decide whether to continue with medical treatment. This was, quite literally, a question of life or death. If the treatment did not continue then that person would die.
THE REMOTE HEARING
Before I explain my reasons for my decision there are two matters I should mention at the outset. This case was listed to be heard before me in court in Nottingham. But with the onset of the national COVID-19 medical emergency it became clear to me that a traditional physical courtroom trial was likely to be extremely risky to the participants and therefore was unacceptable. Therefore, I decided with the agreement of all participants, at a telephone case management conference on the day before the start of the trial, that the hearing would be by Skype. The organiser and manager of the virtual hearing was Mr Matt Nichols of DAC Beachcroft in Bristol, the solicitors for the GP. I am very grateful for his extremely assiduous work in ensuring that the hearing proceeded almost without a hitch. I am also grateful to all the lawyers and other participants who cooperated so fully so as to enable the hearing to function. There were 17 continuously active participants at the hearing and in addition 11 witnesses were heard. Further, two journalists observed the proceedings. The participants and witnesses were scattered all over the country from Northumberland to Cornwall, Sussex to Lancashire. The only slight problem was that a few of the recording files became corrupted by virtue of their size. The lesson is that a sequence of recordings should be made, none exceeding about 30 minutes. In the current national crisis, it must be expected that hearings will be conducted remotely in this way as a matter of routine practice.
The second preliminary matter is to record that SJ’s counsel, Mr Peter Mant, and his instructing solicitor, Ms Kate Jackson, appeared pro bono. That was a major philanthropic act by them. The issues were complex and challenging and the case they formulated and presented was done with eloquence skill and erudition. I am very grateful to them.