Guidance issued on remote access to Court of Protection

The Vice-President of the Court of Protection has today (31 March) issued updated guidance on remote access to the court.

In the foreword to the guidance, which can be viewed here (on Alex Ruck-Keene’s Mental Capacity Law and Policy blog, Mr Justice Hayden writes: “The present viral pandemic presents real and obvious challenges to the effective and fair operation of the Court of Protection. Remote access to the Court has become a necessity and it is the responsibility of all involved to ensure that such hearings continue to provide proper access to justice. These arrangements are driven by the inevitable restrictions on freedom of movement that have been put in place to protect public health.

“Remote hearings, i.e. by Skype or alternative versions of video link, will sometimes fall short of providing the opportunities that are available in a live hearing in a court room. Recognising this, it is important to keep in focus that the procedure should seek to ensure that those who lack capacity do not become more disadvantaged than their capacitous counterparts.”

The Vice-President said it remained the obligation of all involved and at all stages of the hearing, to continue to evaluate whether fairness to all the parties is being achieved. “Fairness cannot be sacrificed to convenience.”

Mr Justice Hayden added that transparency was central to the philosophy of the Court of Protection. “Whilst it will be difficult to ensure that a Skype hearing is as accessible to the public as an ‘Open Court’, this does not mean that transparency can become a casualty of our present public health emergency.”

The judge said that provisions had been made for the continued presence of the press. “If anything, the present emergency enhances the need for continuing press scrutiny, representing, as it does, the conduit by which we preserve the fundamental right of freedom of expression.”

Mr Justice Hayden said that in common with the Family Court the document set out operational protocols governing remote hearings. “Doubtless these will evolve and develop as the Court adapts. I anticipate the protocols will have to be refreshed from time to time.”

The guidance, which can be viewed here, covers:

• General information on the status of the protocol, including that the CoP can be lawfully constituted with all participants (including the judge) sitting remotely. Remote hearings are the default position until further direction. “Reequests for an attended hearing are highly unlikely to be granted unless there is a genuine urgency and it is not possible to conduct a remote hearing.” (emphasis in the original.
• Legislative framework.
• Judicial access to audio/visual conferencing.
• Video/visual conferencing.
• Cloud Video Platform MoJ/HMCTS, the availability of which “may be days rather weeks away”.
• Skype for Business; Microsoft Teams; Other platforms (Zoom; Facetime; Lifesize).
• Audio/Telephone.
• Security.
• Transparency.
• Transcription/recording of the hearing.
• GDPR.
• Attendance of P at the hearing.
• Litigants in person.
• Witness evidence.
• Electronic bundles.
• Use of interpreters and intermediaries.
• Orders and Service.
• Legal aid funding.

The previous version of the guidance will no longer be the applicable protocol.