By Jenny Kitzinger, Thursday 25th February 2021
I’ve observed Court of Protection hearings on and off for several years now – both in physical courtrooms and more recently via video-platforms. I’ve also supported families through court cases. But this is the first time I have mentored students to observe a hearing.
The value of taking law students into courts is self-evident, but it’s important to realise that hearings in the Court of Protection can also be relevant for students in medicine, nursing, psychology, social work, philosophy, and a wide range of other areas, including journalism. Indeed, providing support for trainee journalists to attend hearings might help to address the dearth of court reporters.
Selecting a hearing
The hearing my students observed concerned life sustaining treatment for an individual in a coma. The subsequent judgment provides a good outline of the case (see Sandwell And West Birmingham Hospitals NHS Trust v TW & Anor  EWCOP 13 (12 February 2021)).
The focus of this particular hearing was perfect for the course I teach on “Birth, Marriage, Death and Liminal States”. This is a course for second year undergraduate students studying journalism and cultural studies, often alongside sociology, law, medicine, literature or politics. The course includes a series of lectures on coma, brain-death, the vegetative and minimally conscious states, and explores end-of-life decisions using a lot of interactive online materials. My undergraduate teaching materials are adapted from a course I also teach as part of continuing professional development for staff in hospitals and neuro-rehabilitation centres, and for legal and medical practitioners (click here). Importantly, I had advance notification about the substantive decision that needed to be made in this hearing. The question was: is it in the best interests of the person at the centre of the case, who is in a coma from which he will not recover consciousness, to continue to receive life-sustaining treatment? This meant I knew the day before the hearing that it was relevant to my students. Of course, one of the problems in achieving “open justice” is there is usually no indication in court listings of what a case is about, so members of the public are unable to determine whether it is going to be a useful experience for them to observe. It was thanks to another Open Justice Court of Protection Project contributor that I learned about this case because she happened to attend the directions hearing the day before – thanks Bonnie Venter (who blogged here).
I limited the offer of mentoring to just two students in order to avoid over-burdening the court administrative process. I also wanted to avoid contributing to any sense that the court was being made into a spectator sport. Such cases may be a “teachable moment” but they are also a trauma and tragedy for a family, and as such great care is needed about using them for teaching purposes. The two students I chose to take up this opportunity, Sophia Chew and Kim Wilkes, have written about their experiences (click here). They had already shown they were serious about studying the course and we were 3 weeks in, so they had a good foundation of some key information. They felt prepared for the emotional challenges that listening to the court hearing might involve. They also agreed to take on the extra learning required and, importantly, were flexible enough with their schedules to be able to free up a whole day if that turned out to be necessary (which it did!).
Practical information for students
I briefed them on issues such as access. I showed them how to use the Open Justice Court of Protection Project resource to email the court (the day before the hearing) to ask to observe. I also encouraged them to hang on and keep checking their emails on the day even if they did not get in at first, which turned out to be crucial, as – much to their disappointment – they were not in fact given access until sometime after the hearing had started.
Practical tips can include suggestions about how to take notes, e.g., using a time code, and always indicating who said what, and noting if a quote has been captured verbatim. Observers should also think about how to maximise their own comfort and concentration: having a flask of tea ready, for example, or planning how to communicate with an observer-buddy via messaging during the hearing (not phone calls, which are an interruption). Had they been attending in person I would have talked them through allowing time for airport- security-type inspections on entrance, the importance of turning phones off, and being prepared for hard seating and poor acoustics – none of which are, of course, an issue remotely.
I talked them through court rules and etiquette in advance. I ensured they knew that they needed to be alone in a quiet room without distractions, and the court does not permit audio-recording of hearings. I emphasised respect for the court process, including the fact that they might be asked to turn their cameras on to identify themselves – so no sitting in pyjamas, as one sometimes finds students do in seminars!
I also described my experience of finding that each judge takes a somewhat different approach (and gave them my impression of Hayden J, the judge in this case). I explained that each case varies, and that unexpected things sometimes occur. It was important, too, to raise with them the likely nature of some of the evidence i.e., it might be upsetting, and they needed to know they could opt out at any point if they found it too difficult, and it was a good idea to think about how to take care of themselves.
Finally, I ensured they were aware of issues such as contempt of court and transparency orders and asked them NOT to tweet about it or in any other way comment publicly during the hearing, as the risk of getting something wrong was high.
I met with them (together) after the hearing to discuss their notes and experiences, and each was invited to present to her seminar group, thus sharing the learning with their peers.
I have also been able to adapt one of the course evaluations. This was originally designed to offer students the opportunity to mobilise their learning from the course to produce an analysis of a news story or a film, I have broadened that to include the court case and allowed Kim to submit an analysis comparing the court hearing (and the written judgment) with media reports for her first assessment; and Sophia to compare media coverage of this case with coverage of another recent treatment withdrawal case. This provides these two students with a framework for continuing to refine what they have learned and to build on their experience of the hearing.
Mentoring undergraduate students to observe a CoP hearing was a bit of an experiment and I was glad I decided to involve two students (rather than just one) as they were able to discuss their reflections together and support each other.
None of the risks I anticipated were realised, but I still think it was necessary to consider them, e.g. the risk of violating the transparency order. It is easy to forget a detail, such as, for example, not mentioning the age of a patient’s children, or whatever other aspect is prohibited in any particular injunction. Anticipating that some cases can be emotionally draining also helped the students to manage that – an important skill for anyone who might go on to work in law, health care, or social care where new colleagues are often thrown in the deep end with little support. This is relevant to journalists too: it is often new young journalists who are sent off to report from coroner’s courts with little preparation to help them with the devastating details of a case, the grieving family and the sheer tragedy of what they might hear.
Mentoring didn’t stop with the completion of the hearing. I supported the students in writing their blog too. It’s important to consider that blog posts might be read by the people directly involved in the hearing that you’re reporting on – including the judge, lawyers, the family, and in some cases, potentially, the person at the centre of the case. An undergraduate law student, Lucy Williams (who wrote a blog here) advises: “the biggest thing is being prepared for the potential of the blog to be viewed by law firms, chambers and prospective employers e.g. my post was quoted by a barrister at a webinar the day it was posted and I definitely wasn’t expecting that!“
Students also need to be ready for the potential and perils of social media. The Project routinely posts links to the blogs on Twitter and Facebook. I invited students to think about this in advance, and let them know I was available if they want to discuss anything.
Mentoring two students through this process relied on me knowing quite a bit already: I am very familiar with Court of Protection procedures, language, and the relevant case law for this type of hearing, so I could help the students understand what was going on. It also needed a great deal of personalised attention and time from me – but this is something I am particularly happy to provide to students at the moment given the really rough time they are having with the pandemic. In return I have been met by two students who have been at once drained, but also energised, by this opportunity.
Sophia and Kim demonstrated an outstanding degree of commitment to learning and to communicating their experiences to others, with a high degree of emotional intelligence and intellectual engagement. The whole student cohort has benefitted from what they shared in the seminars. Other students are now even more eager to have the opportunity to observe hearings if they can, although a couple have commented it made them realise that it would be too ‘close to the bone’ for them and just too upsetting (e.g. because of the death of a grandparent). Even with a student group who had opted for a course which came with a warning that it included emotionally as well as intellectually challenging material, it has been important to offer pastoral care.
The insight offered into how the Court of Protection operates has given all the students on my course (directly or indirectly) a strong practical sense of law-in-action and they said it has been both ‘eye-opening’ and ‘reassuring’. They have been able to use their learning from the course in helping make sense of events in ‘the real world’ and the discussion of the court case has consolidated understanding and enlivened seminars. The presentations given by the two students who observed the hearing triggered, for example, a lot of interesting discussion about best interests, advance decisions and organ donation.
My experience of mentoring students and integrating a court hearing into the course I was teaching was time consuming but it was a rewarding teaching experience. Observing court hearings could be relevant to a wide variety of learners (not just those interested in law) – especially if the Court were able to indicate the nature of the decision even a day or two in advance of a hearing. It has the potential to promote legal, medical, social and ethical literacy. Engaging with how this hearing unfolded in real time has helped my students to understand the complex interface between law, medicine and lived experience. This can only enhance their development as students, as future professionals, and as citizens and help to promote the principles of open justice.
Jenny Kitzinger is Professor of Communications Research at the Cardiff School of Journalism, Media and Culture, and co-director (with Celia Kitzinger) of the Coma and Disorders of Consciousness Research Centre. The online course “Culture, Coma and the Media” is available here. She tweets @JennyKitzinger