This is a guest post by Celia Kitzinger, co-director of the Coma and Disorders of Consciousness Research Centre and Honorary Professor, Cardiff University School of Law and Politics. She tweets as @KitzingerCelia
The judgment in this Court of Protection case was published last week as A Clinical Commissioning Group v AF & Ors  EWCOP 16
On Tuesday 17 March 2020, less than 24 hours after the Prime Minister’s announcement to the nation to avoid all non-essential contact due to COVID-19, I attended the first entirely remote hearing for the Court of Protection. I was there in a voluntary, non-official capacity to support someone I’ll call “Sarah”, whose father was at the centre of a serious medical treatment case.
I’ve been supporting Sarah for just over a year, trying to get the Clinical Commissioning Group and the General Practitioner (GP) responsible for her father’s care to engage with her concerns. This culminated in a formal ‘best interests’ meeting at the end of 2019, at which it was impossible to reach an agreement about her father’s treatment, and then – inevitably – to this court hearing.
I’ve attended more than a dozen court hearings in similar circumstances (and acted as litigation friend in one), all focussing – as with Sarah’s father – on the question of whether clinically assisted nutrition and hydration is in the person’s best interests. I’ve learnt a lot from families involved in these cases about their experience of the hearing itself, as well as in the run-up to and aftermath of the hearing. Sarah’s experience was different – in part because this hearing was held remotely, via Skype for Business.
Not surprisingly, there has been a flurry of publications about remote hearings and I’m glad to see a sustained focus on how to get them working efficiently and how to “make the remote hearing as close as possible to the usual practice in court” (Mr Justice MacDonald, 25 March 2020, The Remote Access Family Court, version 2). The overwhelming response reported so far has been positive. Despite acknowledging some technical glitches, judges, lawyers and journalists have said that they work well. But I haven’t seen anything published about how ‘lay’ participants in court proceedings – litigants in person, witnesses, or family members who are parties to a case – experience remote justice. So, this is about Sarah’s experience, and mine. Sarah can’t put her real name to this piece because of the Reporting Restriction Order: it is “strictly forbidden to allude directly or indirectly to the true identities of the anonymised persons” in the judgment. But we discussed this piece before I wrote it, and she’s read it and is quoted in it and is pleased that it will be made public.
In other cases I’ve been involved in, families have often talked about the gravitas attached to a courtroom hearing: the formality of architecture and room layout, the elevated more distant seat for the judge, the ritual of rising when the judge enters, the element of theatre. It can feel intimidating, but it is also reassuring evidence of the seriousness attached to the case and the ceremonial impartiality of justice. This is important because by the time a family reaches court, the question of whether or not a loved one should receive life-sustaining medical treatments has been addressed on multiple occasions, sometimes over many years, in often muddled and confused ways and at times of heighted emotional intensity. It’s been raised at the bedside, in hospital corridors, in doctors’ offices – frequently without the full facts being known or taken into account, and without family members feeling that they have been heard. The courtroom setting is designed as a formal arena for putting that right.
With a hearing conducted wholly over Skype, all that gravitas is lost. Court architecture is replaced with the backdrop of barristers’ and witnesses’ living rooms. The judge appears up close and personal, just like anyone else with his face in a little square on the screen. And what we found in practice was that a preoccupation with the technology distracted people’s attention from the substantive content of the case.
Two barristers have written their own account of the hearing for Sarah’s father. For them, “it felt comfortable and familiar relatively quickly” and they thought witnesses might feel “less intimidated”, pointing out that “many wore casual attire and sat in their homes, responding to the questions, but not having the full glare of the court on them.” Although they acknowledge some technical glitches, they conclude: “what did we miss? In truth, nothing that mattered.” Journalists, too, have been excited about the use of Skype in this hearing: one tweeted enthusiastically: “I have to say it is super-fascinating watching this pioneering Skype trial – I could get used to court reporting from home! Also enjoying the occasional meow from someone’s cat & checking out the décor of people’s gaffes.”
But it was precisely the “casual attire”, the distracting pets, and the domestic backdrops that added to Sarah’s distress. During the three days of this hearing, I was with Sarah in person. We were in a solicitor’s office in an otherwise empty building, along with Sarah’s pro bono solicitor and barrister. The four of us were there together – attempting social distancing as per government instructions – because we hadn’t heard that the hearing would be conducted by Skype until the day before. We’d been told to prepare for a face-to-face hearing at Nottingham Civil Justice Centre and when the news came through that it would be moved to Skype, Sarah was on a flight from her home outside the UK, and I was on a train from my home in Cumbria. As it turned out, I’m glad and relieved that Sarah and I were able to be together for the hearing, and also to have Sarah’s legal team there in person to explain what was happening. I cannot begin to imagine how tough it would have been for Sarah to have to go through this alone – listening without support to impenetrable arguments between lawyers about her beloved father, conducted in language that was, as she reminded us “way above my pay grade”. I think she’d have simply become disengaged and unable to follow the proceedings. According to one study, that’s exactly what happened to litigants held in detention centres in the USA: they stopped engaging with the legal process (and were more likely to be deported as a result)
Sarah’s father is referred to in the judgment as AF. He had a stroke on 5 May 2016. About a week later, while AF was still in hospital he started refusing to eat and drink and said that he wanted to die. Doctors decided that AF lacked the mental capacity to make his own decisions and inserted a naso-gastric tube against his wishes. He turned to his daughter immediately afterwards and said, “this is wrong”. He pulled the tube out several times – despite attempts to stop him by putting mittens on his hands and a bridle on his nose to lock the tube in place. Because he was “non-compliant” with treatment, doctors (again against his wishes) made a surgical incision in his abdomen and inserted a feeding tube directly into his stomach (a Percutaneous Endoscopic Gastronomy [PEG]). He was then discharged to a nursing home where he has remained ever since. At first, AF was “uncooperative” with feeding and personal care but this has diminished over the years. Sarah believes he has just become “ground down” over time, because he has tried so hard to tell people that he doesn’t want the medical treatments that are keeping him alive, but he has been given them anyway. He still refuses to eat and drink enough to sustain his life – a short trial without clinically assisted nutrition and hydration found he quickly became dehydrated. Sarah’s barrister was presenting Sarah’s case: that PEG feeding should stop and that her father should be allowed to choose for himself whether he wanted the food and drink that would continue to be offered to him. Sarah accepts that he would probably refuse to eat and drink and would probably die.
As the judge acknowledged, Sarah does not want her father to die but was “fighting for his right to die” because she believes that is what he would want.
Sarah lost the court case. The judge said that:
“it would be categorically contrary to AF’s interests for him to be set on the path that will lead to his inevitable death …. This may be a diminished life, but it is a life nonetheless which has, as I have said, intrinsic quality and from which AF derives pleasure and satisfaction.”
Of course, she (and I) feel angry and upset by this judgment, and this inevitably inflects the way we feel about the hearing itself. Sarah says:
“I’m left wondering whether I should have waited and insisted on a face-to-face hearing. It just felt like a second-rate hearing.”
There is evidence that outcomes can be influenced by remote, as compared with face-to-face, hearings: one study found that 50% of applicants heard via video link were refused bail, compared to 22% of those heard in person. Nonetheless, my own view is that this was a complex case and that the judgment is not an outcome of Skype but rather a combination of some challenging facts and this particular judge’s knowledge base, skills set, and established predispositions. I think he would have come to the same decision if we’d all been face-to-face in a courtroom. But a face-to-face hearing would not have left Sarah wondering if justice had been denied her father because of the circumstances of the hearing, or feeling that she missed out on her opportunity to influence the court.
For families in serious medical treatment cases, the court offers the opportunity of ‘being heard’, ‘speaking out’ and ‘giving voice’ to their relative’s wishes – often after a long period of feeling silenced and ignored. It offers the opportunity of ‘being seen’ after having felt invisible within the medical system. For Sarah, who had only ever met her father’s GP in person just once over the course of the three years the GP had been caring for him, and who felt she had been entirely side-lined by the professionals responsible for his care, this was her opportunity to ensure that they heard her truths about her father. What actually happened instead was that Sarah became invisible to the court after giving her witness statement, and the relationship between her and her father was effectively erased by counsel for the Official Solicitor who acted as litigation friend. Right from the outset, Sarah felt that issues other than her father’s wishes were centre-stage. Because this was the first all-Skype hearing, there was a lot of talk about managing the technology at the beginning and end of each day, and intermittently throughout the day as glitches arose and needed addressing. It was definitely a distraction. At times there was what felt to us like an unseemly and self-congratulatory focus about being “the first” such case, about its “pioneering” role in remote justice. Sarah said:
“I’d like the judge and lawyers to know that this hearing was not about bigging yourselves up because you did the first Skype trial. This is about my Dad.”
For me, there was a marked lack of empathy displayed for Sarah throughout this hearing (Sarah’s own legal team excluded, of course). Having, for comparison, lots of experience of how judges and lawyers engage with families when they are co-present in a courtroom, I was shocked by the lack of sensitivity to what Sarah might be thinking or feeling at various points and by apparent indifference to her presence. This was partly – perhaps largely – accounted for by the fact that, except when Sarah was giving her witness statement and being cross-examined, she was not visible to other participants. Due to bandwidth problems, the judge asked everyone (except himself) to turn off video-cameras unless they were giving evidence or questioning a witness. This meant it was easy for lawyers to forget that Sarah remained in the virtual courtroom throughout the hearing. They spoke about her in her presence – nothing uncomplimentary, but just the fact of hearing yourself talked about in the third person is quite unsettling.
Nobody – except those of us in the room with her – could see how upset Sarah became at various points and so they didn’t modify their behaviour to avoid causing her unnecessary distress. For example, counsel for the Official Solicitor routinely introduced herself to each successive witness by saying: “I’m speaking on behalf of A…” (where “A” was the first name of Sarah’s father). Every time she said this, Sarah winced as though she’d been struck. For Sarah, she – her father’s daughter – was the person speaking on behalf of her father, not this woman who barely knew him. To her dismay, Sarah had been refused permission to be litigation friend and that role had been taken by the Official Solicitor. Sarah knows AF better than anyone else. She wanted to be her father’s voice, to speak on his behalf when he could not. It hurt to have this woman she’d never met speak on behalf of her father. And she found it disrespectful that he was regularly referred to by his first name, “A”, rather than as “Mr F” (or even “AF”). I hope and believe that if the lawyers had seen Sarah’s distress, they might have found ways of adapting their behaviour. Maybe if Sarah had been physically co-present, the judge might also have avoided the (to non-lawyers) bizarre claim, in the published judgment (para. 2), that AF himself (acting via the Official Solicitor) opposed his daughter’s views and that AF himself was saying that it was in his best interests to continue with the PEG.
Even when Sarah was giving her witness statement, she didn’t feel as though she was ‘seen’ in court:
“In a court room people can see body language. They can feel the pain and emotion when you speak about that moment of utter desperation that you went through. But I was in a little one-inch box on a screen and being honest I bet half of them weren’t even engaged in looking at it – as the judge couldn’t monitor them to make sure they were paying attention.”
Sarah felt unable to get her message across as she would have done in person:
“Skype took away from me the ability to look these people in the eyes – these people who have their opinions about my Dad and only knew him through third-hand notes. I wanted to look them in the eyes and make them hear the truth but I was looking at a computer screen.”
There were the usual hassles with technology – some of which I assume will get ironed out as people become more familiar with it. Two of the barristers involved described it as “pretty plain sailing” and other than technical glitches the only concern voiced during the hearing was the problem of not being able to see “the judicial pen” (because the judge was only visible from the shoulders up): this, for one barrister led to uncertainty about how to pace his speech with reference to the judge’s note-taking. But my experience was much less positive. Given the speed with which it had been set up and the novelty of what we were involved in, yes it was impressive that it was even possible and huge thanks are due to the solicitor who took responsibility for enabling this. But we had to contend with intermittent loss of connectivity and delays while key people reconnected (including waiting for the judge to reboot his computer); batteries going on two different witnesses’ laptops such that they then had to dash to find their chargers and plug them in; and corruptions with recordings which led to the decision to stop and restart recording every 30 minutes. All of these led to hiccups in the proceedings. They aren’t so different from hassles in court when microphones don’t work, interpreters are late, bundles are unpaginated, documents are lost – but these technological problems were not instead of courtroom hassles, but additional to them. It was still necessary to circulate paperwork to people who didn’t have it – and attempts to do that over Skype (so that everyone could see it on screen simultaneously) failed, resulting in a resort to e-mail – and some witnesses struggled with opening emails or finding Dropbox documents at the same time as running Skype.
One disconcerting feature of Skype, which affected Sarah’s questioning in court – and that of several of the witnesses – was that there was often an audio time lag which meant that the judge or counsel doing the cross-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. The witness would stop – and so would the person ‘interrupting’. A pause followed during which both waited for the other to continue. Then both would start up again simultaneously and the same thing would happen again. Sarah (and others) found themselves apologising for ‘interrupting’ when this hadn’t actually been the case. This was enormously frustrating for lawyers who were good communicators and wanted to listen to witnesses with patience and courtesy. There were many occasions where people with really excellent communication skills were stymied by the technology.
In actual – rather than virtual – courtrooms (or in the waiting areas outside) it’s not unusual for family members I’ve supported before to hear solicitors and barristers joking together, catching up on gossip and exchanging news. On occasion, this can be experienced as inappropriate and exclusionary for people new to the courts – but, lawyers do tend to know this and these conversations are often sotte voce on the front benches as family members seat themselves near the back. One effect of remote justice was to amplify this ‘informal’ aspect of courtroom interaction because it is equally accessible to everyone online. While we were waiting for a formal start one day, there was a discussion between the judge and some of the lawyers about the judge’s current reading matter: Daniel Defoe’s Journal of the Plague Year: it was beamed directly into our office where Sarah and I listened to a conversation about rich people decamping from the cities to the country to escape the plague, and speculation about this in relation to COVID-19. Jokey informality also came into play as lawyers tried to fix technical problems. At one point the judge asked a barrister to adjust her video, saying “We can only see the back of your head. We are all looking at your left ear”. She replied, “My Lord, that may be my best feature!”. Something similar could have happened in a courtroom, certainly, but it was, in this case, the remote technology that offered the opportunity for the quip and the technology that ensured we all heard it. Perhaps, for some parties this humanises the legal process. For others, this kind of levity threatens the formal justice process and diminishes the legitimacy of the court: it can work to underline the impartiality of the process by displaying how ‘pally’ some of these professionals are with one another (in particular, in this case, the judge and one side’s barrister), leaving the rest of us feeling outsiders – debarred from having that kind of exchange with the judge, not ‘one of them’ by profession or by class.
Sarah describes her feelings about the informality engendered by remote justice:
“It definitely made me feel like the outsider. In a court room I’d have felt like it was more of a level playing field. I know there’s the pomp and ceremony of the court, but you can see the pecking order – from me at the bottom to the judge at the top, so you feel better because you know the structure. The visible structure makes you feel safer. But this felt chaotic, which made me feel nervous and insecure.”
Part of the chaos was the intrusion of ‘everyday life’ disrupting the formal ‘theatrical’ elements of the courtroom – the cat that mewed and knocked over books, the tail-wagging dog behind one witness, the mobile phone that kept going off on one witness’s desk. Sarah was not impressed that the judge’s dogs barked loudly and long (necessitating a short break) when someone apparently rang his doorbell – not just once, but twice.
Skype technology also provided everyone with views of the interiors of other people’s homes. The judge, to his credit, had an entirely neutral backdrop (a blank wall, I think). But that wasn’t true of most other people – although one solicitor mentioned having removed a picture of a tiger that would otherwise have been visible onscreen. It would be worth considering the effect of some of these ‘backdrops’ upon a person who is not wealthy, who is unable to access legal aid, who is forced to scrabble around looking for pro-bono legal representation, and whose cultural heritage does not include large rooms with grand pianos or costly furniture – especially given that we were also treated to multiple superfluous Shakespearean quotations from the judge, which were not accessible to Sarah. These views of other people’s domestic interiors with their displays of wealth or specific cultural capital can create, or reinforce, the impression that justice is administered by people with economic, educational and class privilege. And as Sarah says,
“I wanted my Dad to have his day in court – not in someone’s front room”.
The term “remote justice” makes it sounds quite distant – and in some ways, it is. A family member can’t see the lawyers in the flesh and can’t “look them in the eye” and a person can be rendered invisible when their camera is off. But it can also be, paradoxically, quite up-close and personal in terms both of the facial images on screen (the proximity generated by ‘remote’ technologies can sometimes be quite startling) and the home environment behind which doesn’t necessarily fit well with the ‘gravitas’ of the court, or reflect the seriousness of a decision about whether or not to honour an incapacitated person’s choices.
Obviously, there are pros and cons to remote justice, and in the era of COVID-19 we have to accept that there is no realistic alternative. Hearings conducted by phone and video-conferencing are not new and I know from other families I’ve supported that they are sometimes very much appreciated – for example when someone has difficulty travelling (perhaps due to disabilities or because they want to stay by a loved one’s bedside), or because of the expense of travel and overnight stays away from home. I’ve also heard about the problems that can arise. We avoided (I think) any embarrassing moments caused by forgetting to press “mute” or turn off our cameras in this hearing. In an emergency telephone hearing in a different case, about whether reinsertion of a dislodged PEG tube was in the patient’s best interests, a family member overheard a barrister’s doorbell ring, followed by the voice of a visitor expressing surprise that the hearing was not yet finished: the barrister was clearly audible as she voiced frustration and expressed her view that the hearing was a waste of time as the outcome was a foregone conclusion.
Remote justice is a real opportunity with the positive potential to make justice more streamlined, efficient, accessible and inclusive. I support its development both in the context of court hearings and in relation to best interests meetings that (in my area of work) regularly precede them. But this needs to be well-designed, well-researched and well-delivered. This is possible only if the experiences of everyoneinvolved in these hearings are included in the analysis, and properly addressed, so that common law principles of fairness and natural justice are upheld, and seen to be upheld.
According to Mr Justice MacDonald, the feedback from those involved in this case “has been universally positive”. But neither Sarah nor I had yet contributed to that feedback or reported on the ‘things that mattered’ in our experience of a court hearing conducted wholly by Skype. This is our contribution. We would like lawyers and the judiciary to take it into account.
The last word goes to Sarah:
It felt like a second-best option. It didn’t feel professional. It didn’t feel like justice. It felt like a stop gap to ensure a box was ticked – rather than a serious and engaged attempt to make decisions about my Dad.