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

Between 17 – 20 March 2020, the first case in the England and Wales Court of Protection to be held entirely remotely via a Skype hearing was held.

The case concerned a Nottingham woman’s application to withdraw clinically assisted nutrition and hydration (CANH) from her mentally incapacitated father, now in his 70s, who had had a severe stroke. His daughter 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The daughter thus wanted CANH to be withdrawn because she believed that to be her father’s wish, although it was not her own. However, her application was resisted by her father’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. The Court of Protection accordingly rejected SJ’s application.

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. So, with the agreement of all participants, the judge decided that the hearing would be by Skype and according to the Court ‘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, dispersed all over the country.

The hearing was not, however, considered ideal by all parties. One academic who attended voluntarily to support the daughter, 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 the daughter 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.

Notwithstanding these and many other criticisms, the judge 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’.

The case also highlights the need for everyone to consider making a) Health and Welfare Lasting Powers of Attorney (LPA) to cover medical treatment decisions generally and those relating to welfare matters (e.g. care) and also possibly b) an Advance Medical Directive covering life sustaining treatment.

Please feel free to contact our Private Client team to discuss any Later Life concerns.

Lindsey Sharples is a solicitor in the private client team at Barker Gotelee, Solicitors in Ipswich.

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