By Rhiannon Snaith, 9th December 2022
I’m starting a PhD looking at the media reporting of Court of Protection decisions about life-sustaining treatment. I’m lucky enough to have an ESRC scholarship to do this work, under the supervision of Professor Jenny Kitzinger at Cardiff University.
As part of my project, I obviously want to study hearings, understand how journalists have access to and negotiate what they can say about a case and look at published judgments, as well as press and TV coverage.
I hope my work will be useful to the Court of Protection, all those involved in court cases, and to journalists. I also hope it will contribute to open justice principles and to general public understanding of the work of the court
In this blog I want to reflect on the experience of trying to observe a hearing as part of my PhD – and ask for help with this study!
I initially heard about the CoP case (COP 13938884) at around 10pm the night before the hearing was due to happen (on 7th December 2022). It was listed for 10am the next morning before Mrs Justice Arbuthnot at the Royal Courts of Justice (RCJ). It was only at this point that I learned that the case concerned life-sustaining treatment. The court listing did not indicate the subject matter of the hearing (I understand that hearings in the Royal Courts of Justice – unlike COP hearings in the regional courts – never do) – but Celia Kitzinger (co-director of the Open Justice Court of Protection project) had asked on twitter and been informed that it concerned withdrawal of clinically assisted nutrition and hydration.
At this stage I didn’t know whether there would be an opportunity to view the hearing remotely (it was not listed as remote or hybrid), but as that was the only option for me, it was worth trying to see if online access was possible. So, following the example my supervisor had sent, I emailed the RCJ to request a link to observe the hearing, and cancelled all my appointments for the next day, keeping my fingers crossed I could join virtually.
Preferably, such cases would be good to observe in person but due to the last-minute nature and the fact that a journey to the RCJ would take me up to 5 hours, an online hearing was more feasible. However, I was pleased to learn that a public observer who lived in London was able to get to the RCJ at short notice and we’d be able to have a conversation with him afterward too.
The next morning, I grabbed a quick breakfast, rallied up anything that might be needed including pen, paper, snacks, water etc. and began checking for a link and scrolling through the tips and ‘what to expect’ emails my supervisor had sent me to help prepare for the upcoming observation (if we managed to get in).
The general rules were to ensure your mic and camera were off, though there is always a possibility that you could be asked to turn them on, which is why it is important to make sure you are appropriately dressed. It is also important to never take any photographs, videos, or voice recordings of the hearing and I was advised not to make any public comment about the case. (Jenny and Celia have live-tweeted from CoP hearings in the past, but Jenny was clear with me that this involved greater skill and understanding than I currently have.). You must also be on your own while observing (unless you’ve previously asked the court for the link to be shared with someone else) and you must not share the link to the hearing with anyone.
Jenny also reminded me that due to the nature of the cases brought to the Court of Protection, it’s important to take care of yourself and take a break, if necessary, at any point during the hearing. However, she advised, it would be best not to exit the video-platform, as there is no guarantee you will be let back in.
The hearing was scheduled to start at 10am, but the link to the hearing did not come through to me until 10.16am. I promptly followed the link and the instructions that came along with it and entered the online conference room. In preparation, I had already ensured that my camera was not only ‘off’ but covered with a sticker and was obsessively trying to check that my mic had been turned off – it was.
Once I entered the video conference, I was greeted by a black screen that stated ‘No one is presenting’ with a list of names on the lefthand side that told me who was a guest and who was a host: among them I recognised Jenny’s name. Satisfied that we had both made it into the online room, we privately messaged each other (via text message, during which time we ensured our cameras were off and that we were on mute.
Halfway through this exchange Jenny tried to help me by describing which barrister was which by reference to where they were sitting on the benches, as she explained that there had been no introductions (or if there were, we were both admitted too late to hear them). Up until this point I had been under the impression that the hearing had been delayed and I was merely waiting for it to start – but because of her comments I realised Jenny could see and hear things I couldn’t.
Though I’d followed all the instructions and used the Google Chrome extension, which is recommended, I’d somehow ended up in some sort of holding pen, unaware that the case has started. I exited the online room and attempted to follow the link again – it worked this time and let me straight into the hearing. At this point it was 10.44am so I was really worried that I had missed a lot. But actually, the hearing had been put on hold due to technical problems on the part of one of the witnesses. I was unsure as to who was who, but Jenny thankfully knew some information, even without having heard an introduction herself (e.g., she knew who the barristers were and who they were representing) and she emailed me this and a summary of the bits I’d missed, which made deducing what was going on much easier. I don’t think the hearing would have made as much sense to me without this help. Also, it would have been really helpful to have had position statements, but I gather these weren’t yet available because of issues with the Transparency Order.
At the end of the hearing, the journalist physically present in the court room, Brian Farmer, asked a series of questions about what he could and could not report about the case. This was something he particularly needed to clarify as there was no Transparency Order available. This was really interesting – potentially – and important for my research but I strained to hear what he said as Mr Farmer was, unfortunately, off-mike. The camera was only on the judge at this point, and I had to try to deduce what the journalist was asking from the Judge’s responses.
During the hearing, I began making notes, attempting at first to be consistent with including time stamps (to allow Jenny and me to compare notes easily and to ensure I knew how much time was given to different witnesses etc). Unfortunately, I soon forgot about using time codes in my haste to write up as much as possible, as accurately as possible. In future, I need to find a way to remind myself to jot down the time every 2 minutes or so. This would be beneficial as later, whilst going through our notes, had I put more of the times down both myself and Jenny would know where to go in our notes to compare.
I made sure that I made both a summary of what was being said (and by whom) and made a note of specific quotes that stood out to me. Following the proceedings was fairly straightforward though, inevitably, there were terms and phrases that I did not recognise or took me a moment to place. I have a growing list of ‘Key Terms’ in a separate document to aid me with this and have researched key aspects of the Mental Capacity Act 2005 which spell out how best interests decisions should be made.
I did find the case itself was upsetting, not surprising for a case where there is disagreement about life-sustaining treatment, but I debriefed with Jenny, and it did seem like the case was well run and the family had a voice. It was good to get a strong sense of the patient, and the lovely and much-loved man he had been, and to feel he was at the centre of the case.
The hearing was concluded fairly quickly, ending at roughly 12.50pm. The judgment is on Friday this week, which I also hope to attend. Meanwhile, I’m looking for the media coverage.
I felt very privileged to have been able to observe this court hearing – but it was only through luck and with a lot of help that I was able to do so, and parts were rather frustrating, from the point of view of a researcher.
A final disappointment was to learn that the Open Justice colleague who’d been going to attend in person, didn’t do so. He’d arrived at the court room to find a notice on the door saying “Private: No Admittance” and had left the building as a result.
I can see it is going to be hard to study CoP hearings about life-sustaining treatment – time-consuming and tricky.
If anyone can help me learn about hearings about life-sustaining treatment in advance, I’d be very grateful, as I hope to attend some hearings in person, and to be able to observe others online.
Rhiannon Snaith has an ESRC PhD scholarship to study reporting of End-of-Life Decisions. She’s just started tweeting @Rhiannon_Snaith and is looking forward to joining in online discussion of law, ethics, end-of-life and the role of journalism.