The latest guidance from the government on how to respond to COVID-19 will clearly have an impact on the operation of all Courts in every jurisdiction. It is not realistic to assume that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt. The global position of COVID-19 is changing on a daily basis. Following this guidance, it is said that there is likely to be an increase in remote hearings as an alternative to visiting the Court itself.
What the guidance says
Mr Justice Hayden, the Vice President of the Court of Protection, has issued two sets of guidance considering the operational situation of the Court of Protection and suggesting practical solutions to some current issues arising as a result of Covid-19:
• Visits to P by Judges and Legal Advisers – published on 13 March 2020
• Additional Guidance for Judges and practitioners arising from Covid-19 – published on 18 March 2020.
First Skype Hearing in the Court of Protection
An entire trial is being conducted over Skype to ensure the legal system continues through the uncertain times of COVID-19 Coronavirus. The Lord Chief Justice provided a statement outlining that “In both the civil and family Courts, there could be the possible move to telephone and video hearings to tackle the current COVID-19 outbreak. Any legal impediments will be dealt with”.
Visits to P
On Tuesday 17 March 2020, Mr Justice Hayden, Vice President of the Court of Protection, issued guidance on visits to P. The guidance provides that “visits should only be made to P where that is assessed as absolutely necessary”. Further, “alternative arrangements should always be considered first, such as telephone, FaceTime and Skype conferencing”. In addition, “Visits to care homes are to be strongly discouraged”. The guidance has been widely published, with the assistance of the Judicial Office, ad has been made available both to the Court of Protection Bar Association and the Court of Protection Practitioners Association.
Attendance at Court
This Court is charged with responsibility for a cohort of people who are in the eye of the storm. In order to properly protect them, there will be a number of issues which will require urgent resolution and in circumstances where a range of P’s fundamental rights and freedoms risk being compromised. In light of the updated government advice from PHE, it is likely that, for the foreseeable future, some hearings will need to be adjourned or to take place remotely.
• Hearings with time estimates of 2 hours or less will be conducted by telephone. The applicant should make the necessary arrangements as set out in the COPGN5;
• Hearings with time estimate of more than 2 hours will, in principle, proceed unless and until further guidance or specific application in the case. This will be decided by the judge hearing the case, by way of a case-by-case judgement;
• It is likely that there will be an increase in the number of hearings being conducted remotely either in whole or in part.
• Where hearings are to be conducted by telephone or by skype, the court listings will be published in advance as usual and any updated guidance will be made public.
Common Questions relating to the Court of Protection:
Q) How should practitioners proceed in respect of documents which require a signature by the Deputy, when they are in self isolation?
A) Until further notice, the Court of Protection can accept electronic signatures. Alternatively, where documents are submitted vis email, a photo of the Deputy’s signature could be attached.
Q) The Mental Capacity Act 2005 and Court of Protection require P to be personally notified on various matters. How can this be substituted in circumstances, for example when P is in lockdown?
A) Arrangements could be made by the applicant by way of an application for notification “by a duly appointed person by an applicant”, (Rule 7.2(1(c)) such as, care home staff. Alternatively, a COP9 application may be appropriate.
Q) Can capacity assessments be undertaken by way of a video, when P is happy to do so and can be seen alone?
A) The assessor will need to make clear the basis of the assessment, whether such evidence is sufficient would be determined on a day-to-day basis. There would need to be careful consideration given to P being adequately supported. Consideration is essential and needs to be addressed in the best interests of P.
Q) Will the Court accept electronic bundles?
A) Currently the Court do not have the computer software to accept any electronic bundles. The Court are able to accept documentation by email. It would be extremely helpful if documents could be scanned separately, as large bundles would slow the system down.
Q) In relation to the property and financial affairs appointment of a Professional Deputy, who has filed a COP4, would it be possible to issue an emergency interim Order to enable financial management work to be undertaken pending the Court’s determination of appointment on a long-term basis?
A) Interim orders of short duration would indeed be possible, but the Court would still need to be satisfied for the purposes of section 48 MCA that there is “reason to believe” that P lacks capacity, and the range of authorities will be more limited. If applicants really are not able to meet the usual requirements by other means, it would be helpful if they specifically identify any issues which really need to be addressed on an interim basis.
The key messages to be taken from the current situation are:
• Hearings of less than 2 hours estimate will proceed by telephone, to be arranged by the applicant and hearings of a longer period will proceed, subject to any application in the particular case. This approach will be reviewed frequently.
• All practitioners must consider the range of options open by use of Skype, telephone conferencing etc.
• There should be an invigorated determination to move forward at directions hearings by agreement wherever possible, but without compromising the interests of the client. Where this is not possible, the parties should seek a telephone or Skype hearing.
• The pressure on Court staff is barely sustainable. The guidance emphasises that, however committed and creative the judges and lawyers may be, the Court process relies very heavily on the availability of a very small team of administrative support.
• The Court is presently only able to use Skype in limited circumstances, but this is being considered further. Separate practical guidance will be issued shortly for use of Skype/Business Skype in the Court where possible.
This is clearly a fast-moving situation and the guidance will be reviewed as circumstances develop. Justice Hayden plans to provide regular updates which we will circulate as soon as they are issued.