Guest post by Katrina McCrory, healthcare specialist at Mills & Reeve, who acted on behalf of the NHS clinical commissioning group (CCG) in the first ever Court of Protection case conducted remotely via Skype
As the success of remote hearings sparks discussion – with many lawyers advocating for further adoption of these options post-coronavirus – retaining an even-handed view is key. Considering what stands to be lost as well as gained, and what steps can be taken to safeguard human connection and nuance, will be crucial.
When the decision was made for this recent Court of Protection case – which concerned whether or not to sustain treatment for a patient in their 70s – to be conducted remotely, lockdown hadn’t yet been implemented. Yet, calls between the judge and legal representatives quickly ascertained that a trial in person would not be feasible, and after due consideration of all participants’ personal circumstances and health concerns, proceedings could be carried out on Skype to reach a much-needed result.
The inevitable technical challenges were resolved to meet the tight deadline – meaning that, in the circumstances, the process worked well and allowed a decision to be made, announced on 27 March.
However, the daughter of the patient in question has since expressed concerns that, due to the technological barriers, she felt she could not connect fully with others in the case – and also warning the legal system against too much self-congratulation.
With social distancing measures requiring the majority of us to work in isolation, it becomes even more clear that face-to-face communication, often taken for granted, is an important part of the legal system and working life. Nuance can be lost through a screen, and preserving this human connection will be key as we establish a due process for future remote trials.
The affinity that is built up between lawyer and client, or witness, cannot be underestimated. While subtle shifts in courtroom behaviour and etiquette through video call would be learnt over time, the emotional potential of face-to-face conversation will be harder to preserve in all instances.
When remote hearings are a choice, rather than a necessity, we should take steps to ensure that emotional connections are maintained.
For example, at present, individuals involved in a hearing are likely to be separated to comply with government guidance, but in future remote trials, lawyers could be in the same room as their client, accessing the benefits of communicating through video but also retaining a strong sense of ‘team’ and support.
For process-driven and administrative legal proceedings such as directions hearings, where witnesses are not involved, video calls do save time by encouraging all parties to keep to schedule, while also delivering environmental and financial benefits through less travel and accommodation.
When considering witnesses and non-legal parties, it will ultimately be the judge’s decision, using court guidance, to account for the wide spectrum of needs and preferences when communicating via video. Each circumstance is unique and, while this example has proven video can work, in the longer term the luxury of more time and flexibility will allow remote hearings to be considered on a case-by-case basis.
This will allow the legal system to account for the fact that, while some participants might find remote trials less intimidating, others may feel, with formality taken away, that the court process is less valuable – with the daughter in this case citing background noise and participants joining in less formal settings as adding to her sense this was a second-rate trial.
However, others may prefer the changes to rigmarole in a ‘work from home’ trial, modernising a tradition-steeped legal system.
Getting the balance right between formality and innovation will be key, and there will be no ‘one size fits all’ option. Considering these issues with all those involved before the hearing would allow opinions to be gathered – ultimately ensuring that all parties feel they could effectively perform their role and take part in the trial through a screen, before decisions are made by the court.
A final consideration is in ensuring proceedings are open to the public. This was accounted for in our case by Press Association attendance, but a more long-standing process would have to be devised.
Again, decisions made during times of necessity provide a useful test case, but with the luxury of more time and a thorough review of cases such as ours, other options will require full assessment. Long-term transparency within the court process and during trials must be maintained, unless there are very particular circumstances.
Trials and hearings during the pandemic will provide valuable experiences and perspectives we can learn from. Rather than acting as a model, these should start a discussion – acting as point from which we can develop a flexible, empathetic way of ensuring remote hearings allow all voices to feel fully heard.