The case we are reporting on in this blog is particularly important as the hearing took place during the national COVID-19 medical emergency and was therefore one of the first Court of Protection hearings to be conducted via Skype.
The case was originally listed to be heard in Nottingham and included:
- 17 continuously active participants
- 11 witnesses
- 2 journalists who observed the proceedings.
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’. He commented that the only problem was a few of the recording files were corrupted due to their size and therefore gave the following guidance ‘A sequence of recordings should be made, none exceeding about 30 minutes’.
The government has since enacted the Coronavirus Act 2020 which provided additional guidance on the availability of video and audio link in court proceeding, the guidance on this legislation can be found here.
This case sheds some light on the use of technology to conduct hearings, it shows us that despite the circumstances our judicial system can carry on productively and successfully.
The team at Clarion have continued to conduct both hearings and mediations by video and telephone and these have happily been carried out without any issues. In particular we recently attended a final Court of Protection hearing via Skype with 5 participant parties. Judgment is expected to be handed down shortly.
If anyone has any questions as to the practicalities of Skype and telephone hearings then we are happy to share our experience so please contact Clarion’s Contentious Private Client team.
The case: A Clinical Commissioning Group V AF and SJ and a GP
The subject of A Clinical Commissioning Group v AF & Ors  EWCOP 16 was whether it was in AF’s best interests to continue to be force fed through a tube. The court found it was not in his best interests “for him to be set on the path that will lead to his inevitable death from starvation”.
AF suffered a stroke in May 2016 and as a result he had to receive CANH (clinically assisted nutrition and hydration) treatment and be fed through a PEG tube. The case was heard before Justice Mostyn. The only party who disagreed this was the case was SJ, AF’s daughter. The issues put before the judge were two-fold:
- Whether AF has the capacity to agree to the treatment. All parties and the judge were in agreement that AF lacked the capacity due to his stroke.
- Whether it is in AF’s best interest to receive CANH treatment. This was the issue in dispute. All parties save for SJ were in agreement that it was in AS’s best interests to continue with the treatment.
It, at first, seemed striking that the party putting forward that AF should no longer have his life sustaining treatment was his own daughter SJ. It is noted throughout the case that SJ’s motivation was not her own financial gain but for her father’s quality of life.
During his lifetime AF worked for the NHS for over 30 years. In her first statement SJ explained that from his days in the hospitals AF saw sickness and death. She explained it wasn’t death that scared her father but rather the lack of dignity that came with illness. She recalled he would often say that ‘you shouldn’t always keep people alive’. Her father expressed the view that he would never want to just be a ‘body in a bed’.
The Judge made the following comment in response to the statement of AF: ‘I record that in none of the cases that were cited to me was the protected party enjoying anything like the degree of functionality as that presently enjoyed by AF. They were all either vegetative, minimally conscious or in an equivalently parlous position’.
SJ also put forward an argument that AF was resistant to the treatment, he was given CANH in the first instance because he was refusing food. After the PEG tube was fitted AF tried to pull it out himself and was forced to wear mittens to prevent him from doing this further.
Dr H (consultant in rehabilitation medicine) explained, and the judge agreed, that during the above period AF was deemed to lack capacity in relation to making decisions as to his medical treatment. The statement of AF’s longstanding GP was also heard who submitted that terminating the treatment would not only ‘be unethical but also arguably unlawful’.
The Judge concluded that it would be in AF’s best interests for the CANH to continue. He reached this conclusion on the basis that it would be ‘categorically contradictory’ to AF’s interests to ‘lead him on a path that would lead to his inevitable death from starvation’.
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