By Jordan Briggs, 8th March 2022
UPDATE: The judgment in this case is now published: Manchester University NHS Foundation Trust v WV  EWCOP 9 (08 March 2022). Latest news: “Autistic kidney-row teen’s transplant ‘a success’“
I watched this hearing (COP 13866627) over Microsoft Teams between 28th February and 3rd March 2022. It concerned whether kidney transplant was in the best interests of a 17-year-old, William Verden (SV), with a rare kidney condition. Its facts are detailed here.
In what follows I draw on my own observations of the hearing and on George Julian’s helpful live-tweeting of the case as a public record to supplement my own notes. George Julian live-tweets Court of Protection and inquest proceedings to increase public awareness of disabled people’s personal and legal experiences. She provides an exceptional public service for which she has rightly been recognised by the BBC. I am indebted to her for what follows and hyperlink her tweets throughout.
The advocates in this hearing were Helen Mulholland (for the applicant Trust), Emma Sutton (for WV, via the Official Solicitor) and Victoria Butler-Cole QC (for WV’s mother, the second respondent). The judge was Mrs. Justice Arbuthnot.
I observed this hearing because I’m currently training to be a barrister, intending to practice in the Court of Protection, and wish to gain practical experience of matters therein. I observed in the company of fellow-observers (including a trainee psychologist, academic lawyers and a disability rights activist). These observers and myself gathered virtually in a private chat room, where we exchanged our views about the experience.[i]
By means of background, barrister training involves tuition in academic and practical skills. Academically, we learn the ethics of advocacy and the rules of procedure in criminal and civil courts. (‘Civil’ simply means ‘any legal matter that isn’t criminal’.) That includes how civil and criminal proceedings are instigated, what evidence can be admitted to courts and barristers’ ethical obligations to never mislead courts.
We principally learn those matters from large textbooks which state the courts’ procedural rules. The textbook setting out criminal procedural rules is called ‘Blackstone’s Criminal Practice’. The textbook setting out civil procedural rules is called ‘Civil Procedure’, but it is colloquially known as ‘The White Book’ because it is white in colour.
The practical skills we learn include how to hold conferences with clients, how to write legal opinions and skeleton arguments and how to handle witnesses in court (i.e. how to conduct cross-examination and examination-in-chief).
Given my training in such matters, in what follows I will compare what Bar training has instructed me to do in court against what I observed real barristers doing in WV’s hearing. I observed both convergence and divergence. My observations fall under three headings:
(1) Evidential complexity
(2) General witness-handling
1. Evidential complexity
I have two reflections on the evidential complexity in this hearing. They concern:
- the technicality of the evidence
- the value of visual aids.
(i) Technicality of evidence
This case involved what, in closing submissions, Helen Mulholland described as “very detailed and complex medical and other evidence” about nephrology and learning disabilities. By contrast, in Bar school, we learn advocacy in the context of simple factual scenarios (e.g., road traffic accidents or contractual disputes about home refurbishment). That is understandable: it allows us to focus on learning new skills without grappling also with complex facts. Nonetheless, this case was a potent reminder that legal practice can require literacy in challenging, technical science.
Unfortunately, and inevitably, there was a disjunct between barristers’ and witnesses’ medical literacy and some observers’ understandings. Some social media users (I will not hyperlink them in order to respect their privacy) argued that WV’s non-receipt of the transplant would amount to ‘eugenics’, grounded in ‘ignorance’ and ‘prejudice’ about ‘neurodivergence [and] disability’. That is a regrettable misrepresentation – or misunderstanding – of the Court of Protection’s best interests jurisdiction. Yet such commentary also raises a difficult question. If, in technical cases like WV’s, open justice is insufficient to secure public understanding, ought we do more to secure it? If we should, what might that involve?
One answer would be for the Court of Protection, in complex and/or high-profile cases like WV’s, to issue plain English factual and legal case summaries before or after the hearing. The United Kingdom Supreme Court so issued (here) in the recent case A Local Authority v JB  UKSC 52 (as a downloadable pdf). Such a summary in WV’s case could have clearly stated the risks of kidney transplant so that the public could understand why it was not straightforwardly ordered. However, pragmatically it is difficult to imagine the Court of Protection writing (or commissioning) plain English summaries for the vast majority of its hearings because it is overworked and under-resourced. Therefore, for the time being, the question of whether and how public understanding should be secured in technical cases like this one remains open.
(ii) Value of visual aids
It has never been suggested to me in Bar school that barristers may create and submit visual aids to the court to aid their understanding of a case. Yet, in this hearing, Victoria Butler-Cole QC created and annexed to her Position Statement a helpful diagram setting out each of WV’s four different possible treatment pathways (see Appendix – with thanks to Victoria Butler-Cole QC for permission to reproduce it here).
That diagram helped everybody. All barristers referred to it at one point or another. One of the expert witnesses, Moin Saleem, was shown it too. When he was, I noticed the judge smile warmly. While Moin Saleem could not access the diagram during the hearing due to a failure of his electronic bundle, he confirmed that it was broadly correct. These observations have inclined me toward producing similar diagrams when appropriate in order to similarly assist the court.
(2) General witness handling
I have three general reflections on the witness handling in this hearing. They concern: (i) witness temperaments; (ii) the speed of witnesses’ evidence, and; (iii) a technique called ‘insulating the witness’.
(i) Witness temperaments
In Bar school, we are taught how to handle – and therefore perhaps impliedly, to expect – witnesses who are vulnerable or obstructive. That is understandable: it is better for students to anticipate challenging witnesses and encounter pleasant ones than the other way around. Yet, none of the witnesses in this hearing were problematic. On the contrary, all were intelligent and articulate. As Helen Mulholland observed in closing submissions, (even) the lay witnesses’ evidence – Drs X, Z and Y – gave “very detailed” evidence backed by a “great detail of expertise”.
Some temperamental differences naturally separated the witnesses. Moin Saleem spoke more softly than Dr X, whose evidence he followed. Dr Y spoke quieter still and, at the beginning of his evidence, was asked by the judge to speak more loudly. However, this hearing was a good reminder that contrary to Bar school instruction, witnesses can be pleasant, intelligent and helpful.
(ii) Speed of witnesses’ evidence
A recurrent problem in this hearing was that witnesses spoke too quickly for the judge to note down their evidence. On the first day, the judge twice had to ask witnesses to slow down. On the second day, the judge had to ask twice more. By the third day, the barristers had cottoned on.
Victoria Butler-Cole QC, for example, began her cross-examinations of witnesses giving evidence over the remote link by saying “If I look away from the [computer] screen that is because I’m trying to watch the judge to see if she’s getting it down”. Helen Mulholland, when conducting examination-in-chief of Dr. Y, was similarly attentive. She fixed her eyes on the judge and frequently raised her palm to Dr. Y, indicating that she should pause her evidence to enable the judge to note it all down.
It was useful to observe this. In Bar school, teachers do not always note witnesses’ evidence when we are practicing examination-in-chief or cross-examination. Teachers focus instead on whether our examination technique is too rapid or otherwise improper. This hearing was therefore a useful practical reminder to students like myself that good examination-in-chief or cross-examination involves controlling the pace of the witness to ensure that the judge can record their evidence.
(iii) ‘Insulating the witness’
Here is our first term of art. There will be only one more. ‘Insulating the witness’ occurs in examination-in-chief. It describes when a barrister, anticipating that the credibility of their witness might be attacked in cross-examination, asks special questions to the witness specifically in order to protected their credibility from being so undermined. (The functions of cross-examination are discussed in the section below this one.)
By means of example, imagine a criminal case involving the night-time burglary of a house. Mr. B is the alleged burglar. The elderly Mr. A says he saw Mr. B do it. Mr. A was thirty-feet away when so observing. The prosecuting barrister will call Mr. A as a witness, whose evidence will suggest to the court that Mr. B was indeed the burglar. However, Mr. A’s credibility is vulnerable to attack. Namely, the cross-examining defence barrister could argue that Mr. A’s identification is unreliable because of the long-distance nature of his observation, the cover of darkness and (proven or suggested) age-related macular degeneration. To ‘insulate’ Mr. A against such attack, the prosecuting barrister could ask “How can you be sure that you saw Mr. B?”. Mr. A may answer “I was wearing my glasses and Mr. B was illuminated by a porch light”. If he does, it is no longer open to the prosecuting barrister to suggest that Mr. A’s view was unsafe. Accordingly, through ‘insulating’ Mr. A, his credibility and persuasiveness have been safeguarded.
Moin Saleem was insulated in this manner when giving evidence about the risk of disease recurrence after transplant. With reference to his own clinical study, Moin Saleem said that the risks of recurrence for WV were not a reason to not authorise the transplant. However, the sample patients in Moin Saleem’s study included some with different forms of kidney disease to the kind WV has.
Emma Sutton must have anticipated that, in cross-examination, other barristers would seize upon that difference to suggest that Moin Saleem’s evidence should be given little weight because it was not based upon patients like WV. Accordingly, Emma Sutton ‘insulated’ Moin Saleem against such attack by asking whether the patient sample in his study “made his research any less valid”.
Moin Saleem answered “no, no, in my opinion our research is very valid [because it] breaks patients down in to groups [so that you can]… take all patients with WV’s presentation [of which, genetically and phenotypically, there were many] and compare them to each other”.
After this, it was no longer open to other barristers to suggest that the difference between WV and Moin Saleem’s patient sample undermined the transferability of Moin Saleem’s findings.
That was the first time I have seen a witness insulated in real-life. I found it satisfying and instructive as to how I will deploy the technique. I am glad to share in this blog the mechanics of precisely why Emma Sutton asked that question when she did.
I have three reflections on the cross-examination in this hearing. They concern:
- framing of questions
- ‘boiling the frog’
- paying attention to witnesses’ answers.
(i) Framing questions
By means of background, cross-examination has two core purposes. First, and most simply, barristers ‘put their [client’s] case’ to the witnesses who do not agree with it. Barristers must, in general, tell the court what their client says happened factually or ought to happen going forward. In cross-examination, that means confronting a witness who says ‘x’ with ‘well, my client says ‘y’’. That is an ordinary feature of legal advocacy. Nothing more need be said about it here.
The second, more relevant purpose is that, as explored in another blog post on cross-examination, cross-examination seeks to undermine the credibility of a witness. This is important because it can influence the outcome of a legal case.
Recall the elderly Mr. A above, who says that he saw Mr. B committing burglary. Imagine that Mr. A’s credibility is undermined so that nobody believes he clearly saw Mr. B. Without other evidence that Mr. B did the burglary, Mr. B must be acquitted. So, through undermining the credibility of a witness, a barrister seeks to obtain the legal outcome they want by persuading the court that their opponents’ arguments are too weak to be accepted.
Victoria Butler-Cole QC achieved this by persuasively framing her cross-examination questions. The genius in Victoria Butler-Cole QC’s cross-examination involved, in my view, co-opting the witness doctors’ clinical deference.
Doctors tend to tightly define their own areas of expertise and when matters fall outside those areas, they readily defer to others who do specialise in such matters. For example, Dr. Z, a consultant in paediatric intensive care, was reluctant to express any views on renal matters or “stray into renal expertise”.
Moin Saleem agreed to be guided by clinicians who knew WV personally because he did not.
Dr Y deferred to WV’s mother on the nature of WV’s ‘triggers’ because she had known WV for so long.
In my view Victoria Butler-Cole QC anticipated or detected this deferential tendency and cross-examined Dr X in a manner designed to benefit from it. (See tweet thread starting here).
VBC [Victoria Butler-Cole QC]: “Your analysis for best interests is based on opinion that, in order for WV to have plasma exchange, he’d need to be sedated and ventilated. But, if it turns out not everything has been tried for him to tolerate treatment, then you could be wrong about that, do you agree?”
Dr X: “Yes.”
VBC: “And if you were wrong about that, then your view on dialysis would change, right?”
Dr X: “Yes.”
VBC: “So we wait to hear from Dr Y and Dr Carnaby [the psychiatrists]: if they say reasonable chance [of WV tolerating dialysis] with [amply soothing] measures in place, would. You accept their advice on that?”
Dr X: “Yes.”
In her last question, Victoria Butler-Cole QC is triggering Dr X’s clinical intuition to defer to doctors with more specialised relevant experience than his own. Mr. X’s affirmative answer was, perhaps, unavoidable given clinicians’ deferential tendencies, but it acted to discredit Dr X’s present view that plasma exchange is not in WV’s best interests. Deliberate or not, that exchange is a masterclass in framing your questions to trigger witnesses’ known idiosyncrasies in order to elicit an answer which helps your case.
(ii) ‘Boiling the frog’
This is our second term of art. It describes a cross-examination tactic. If one were to ‘boil a frog’ in a pan of water over a hob, one would not toss the frog into water that was already frothing and searing. The frog would simply leap out. Your chance would be lost.
Similarly, in cross-examination, the advocate does not begin with the hardest, most consequential questions. The witness would simply answer nothing. Your chance would be lost.
Rather, when cross-examining you must slowly turn up the heat: beginning with gentle, inconsequential questions and only later reaching the hard, consequential ones. That is what it means to ‘boil the frog’ in cross-examination.
Victoria-Butler Cole QC demonstrated this technique with Dr Y. Her first question was “could you tell us how many times you’ve met [WV]?”. That is an easy question because it has a simple factual answer which ought not compromise Dr. Y or have any direct bearing on the central issue in the case (whether transplant was in WV’s best interests).
However, over time, the questions asked became increasingly relevant to that contested issue or otherwise impugned the conduct of WV’s attending staff (see the tweet thread from here onwards)
VBC: “Do you accept that nobody has ever seen [WV] pull out the [dialysis] line?”
BBC: “It was predictable, wasn’t it, that saying to WV that he can’t have the lunch we told him he’d have might cause him agitation and distress, particularly when he was already in pain and distress from dialysis?”
VBC: “WV said he didn’t want [a particular staff member] in the room… [and] didn’t want [the same] to connect him to a machine. 20 minutes later that staff member came back in the room, even though WV said he didn’t want her doing it. [Why?]”
VBC: “[In a particular day a number of things went wrong which] ultimately resulted in security guards physically restraining WV… that’s not right and shouldn’t happen, should it?”
By beginning with questions unconnected to the contested issue and neutral on persons’ conduct, then slowly introducing questions implicating one or both of those matters, Victoria Butler-Cole QC was ‘boiling the frog’.
The technique can be deployed far more antagonistically in courts which, unlike the Court of Protection, are adversarial. Indeed, throughout the hearing Victoria Butler-Cole QC exhibited a calm, clear and personable demeanour.
This was the first time I have observed ‘the frog boiled’ in real-life. I recommend such observation to other Bar students to optimise their own use of the technique.
- Paying attention to witnesses’ answers
Some of my barrister-training colleagues think that, in cross-examination, you need not pay any attention to the witnesses’ answers. Their reasoning is that, if you frame your questions correctly, you can impliedly discredit the witness irrespective their answers.
By means of example, return to Mr. A, Mr. B and the night-time burglary. The cross-examining barrister may ask Mr. A “it’s right, isn’t it, that you couldn’t see the burglar’s identity because it was dark?” or “your poor eyesight prevented you from seeing the burglar’s face, didn’t it?” Even if Mr. A protests his credibility, the questions sow doubt in the court’s mind that, in fact, Mr. A didn’t see Mr. B as clearly as he purports. My colleagues consider that implied doubt sufficient to undermine witnesses’ credibility.
This hearing demonstrated that my colleagues are not right. Victoria Butler-Cole QC was especially attentive and persuasive in relation to witnesses’ answers (irrespective of who was examining them at the time). For example, in his examination-in-chief by Emma Sutton, Moin Saleem disclosed information that revealed an inaccuracy in Victoria Butler-Cole QC’s diagram. Victoria Butler-Cole QC opened her cross-examination by immediately asking Moin Saleem whether her diagram ought to be amended and by proposing such an amendment. Moin Saleem answered affirmatively to the need for and substance of the amendment.
This made Victoria Butler-Cole QC look persuasively medically literate.
The utility of listening during one’s cross-examination was evident when Victoria-Butler Cole QC cross-examined Dr Y. Dr Y said that security guards attending WV had an ‘information pack’ describing how to interact with him during dialysis. Dr Y said that, pursuant to that information pack, guards could sit outside WV’s room. Victoria Butler-Cole QC immediately identified that nowhere in the information pack was it specified that the guards should sit outside WV’s room. Dr Y conceded that, saying instead that in any event the guards had the option of sitting outside WV’s room.
Through that exchange, Victoria Butler-Cole QC optimised her undermining of Dr Y’s credibility. By engaging critically with witnesses’ answers to her questions, Victoria Butler-Cole QC’s cross-examination – and ultimately the presentation of her case – gained strength and authority.
Bar students would benefit from observing such examination to decide whether, to be most persuasive, one should respond to witnesses’ cross-examination answers or insist on a list of pre-planned questions in any event.
This was a profoundly useful hearing to observe as a Bar student. I believe that all trainee barristers should observe a Court of Protection hearing, especially while hearings remain ‘hybrid’ or fully ‘remote’ on video-platforms.
One reason to observe Court of Protection hearings is because by doing so one observes a range of advocacy styles. Often only two barristers appear in hearings (representing the prosecution/defence in crime, and the claimant/respondent in other civil cases). Yet in the Court of Protection, three (or more) barristers frequently appear because representation is required for P, the NHS Trust(s) and other interested parties like members of P’s family. Observing more barristers is helpful because it allows trainee barristers to make informed choices about the style they consider most effective and thereafter seek to emulate.
Additionally, ‘hybrid’ or ‘remote’ hearings allow trainee barristers to get closer to justice than they may ever get otherwise. Trainee barristers routinely undergo work experience schemes called ‘mini-pupillages’ where, on application to a set of chambers, the trainee is assigned one of chambers’ barristers to shadow over the course of a week. Unfortunately, trainee barristers may spend that week deposited at the back of a courtroom, straining to observe proceedings or doodling away in a notepad. Yet, in ‘hybrid’ or ‘remote’ hearings, trainee barristers see not lawyers’ backs but their faces. This provides a unique opportunity to observe the expressions of barristers and of the judge. Through such observations, trainee barristers can learn that real barristers are not stony-faced and solemn, and observe what sort of advocacy influences judges (recall that, as described above, the judge smiled at the mention of Victoria Butler-Cole QC’s helpful diagram). Again, such observations can only inform and strengthen trainee barristers’ choices of advocacy styles.
Accordingly, ‘hybrid’ or ‘remote’ Court of Protection hearings provide very valuable opportunities to observe the practice and effect of oral and written advocacy from skilled QCs and other barristers. Every trainee barrister would come away stronger after observing a Court of Protection hearing. It is a credit to the Open Justice Court of Protection Project that they facilitate access to this court.
Jordan Briggs is Denise Pannick Scholar at Gray’s Inn currently studying on the Bar Vocational Studies course at City Law School, London. His previous blogs on legal matters include a brief history of legal aid and a 3-part series on the government’s response to Covid-19 and the rule of law and he’s previously blogged for the Open Justice Court of Protection Project (“Elective caesarean in her best interests“ and “Covid vaccination and a Christmas visit”). Jordan tweets @JordanBr1995
[i] I thank my co-observers. I benefitted from hearing their medical and academic viewpoints and warmly commend their analyses to readers.
Appendix: Chart provided to court by Victoria Butler Cole