In GL v Elysium Healthcare Upper Tribunal Judge Kate Markus has provided a helpful reminder of the importance of maintaining standards of fairness in the remote environment.  

The facts of the case were as follows:

GL was detained under sections 37/41 MHA and his case was referred to the Tribunal.  He resided in a self-contained flat adjacent to the hospital ward with another patient.  For Covid reasons GL and his flatmate were advised to self-isolate in the flat on the day of the hearing.  GL asked for an adjournment which was refused.

The Tribunal decision read:

“Initially the Tribunal was advised that the patient would not be able to attend as he was self-isolating as there had been a case of Covid-19 on the ward. The nurse was asked to get a phone to the patient so that he could phone into the hearing. The patient phoned in and the nurse was present with him. The patient’s solicitor raised the concern that this had broken the patient’s self- isolation and that he was now at risk of being infected. The RC advised that she was unsure what isolation procedures had been put in place, that the main concern was patient to patient contact and that, in any event, the patient had had access to the ward before the case of Covid-19 had been diagnosed. The restrictions were unclear as the situation had changed within the previous 24 hours. The patient after speaking to his representative decided that he did not want to participate in the hearing. He said that he was concerned about being overheard by the other patient he shared the flat with. It was confirmed that the patient was sitting in the lounge of the flat and the other patient was in his bedroom with the door shut. The patient was still concerned that he could be overheard. It is noted that the patient is frequently concerned about this and others finding out his history. He also frequently becomes anxious in meetings and it is unclear how he would have coped had he been able to have a face to face hearing. The Tribunal was satisfied that satisfactory arrangements had been made to enable the patient to attend and it was not appropriate to have a face to face hearing. All hearings are currently being dealt with by telephone/video and this situation may well continue for some months. The patient had been offered the option of having a video hearing but had refused. After hearing the evidence from the professional witnesses, the patient was offered an opportunity to come back into the telephone hearing and he did not want to. The patient’s representative argued that the hearing was not a “fair hearing” but the Tribunal is satisfied that in the current difficult climate the hearing was fair and the patient had been given the opportunity to participate and it was largely due to his anxiety that he was unable to do so.”


The Tribunal proceeded in GL’s absence and did not discharge him.  UTJ Markus held that the decision was flawed:

"11. The first error was in the FTT’s assumption that the flatmate would not have been able to hear the proceedings. That appears to be the implication of its comment that the door between the lounge and the flatmate’s room was shut. However, it cannot be assumed that an internal door is soundproof when closed. It was possible that the flatmate would have been able to overhear, especially if he was making an effort to do so. The tribunal could have investigated further in order to make a finding.


12. The second error was in the FTT disregarding or affording little weight to GL’s anxiety. The implication of the FTT’s observation that GL was frequently concerned about being overheard and others finding out his history appears to be that his anxiety was without proper foundation. However, the papers which were before the tribunal showed that GL had been the subject of a serious assault in 2012 which, according to the psychiatric report, may have been ordered by a patient who had become aware of GL’s past offending. That could well have explained GL’s anxiety about both the risk and the consequence of being overheard. In the light of this evidence or further investigation, it was not reasonable of the FTT to discount his anxiety in the way that it did. Moreover, even if the FTT could properly have concluded that GL’s anxiety was unfounded or unreasonable, that did not mean that his anxiety was irrelevant. The FTT should have considered whether his anxiety was genuine and, if so, how that would have impacted on his ability to participate in the hearing….


14. The third error by the FTT was that it approached GL’s application as if he was concerned about the mode of hearing. In its reasons the FTT addressed whether it was fair to go ahead with a remote hearing or whether there should have been a face-to-face hearing. Thus it commented on GL’s ability to cope with a face-to-face hearing and that such a hearing was not appropriate, on GL having refused a video hearing, and on the likelihood of remote hearings continuing for some months. This missed the point of GL’s adjournment application. The fact that the hearing was remote was part of the context in that (in the particular circumstances which transpired) it gave rise to GL’s fear of being overheard, but whether or not a remote hearing was appropriate was of itself irrelevant. The FTT’s emphasis on mode of hearing gives rise to a real concern that this misapprehension may have affected its conclusion."


Comment:


One of the difficulties in remote hearings is that the court may have little way of knowing the circumstances of a litigant who is trying to join a hearing remotely.  In such cases it is essential that the need for a remote hearing should not itself become a barrier for that litigant’s participation.   Clearly in the current case the Tribunal was faced with an unexpected difficulty because of the need for GL and his flatmate to self-isolate.  


GL wished to participate in the hearing, but in circumstances where he was not overheard.   It was not reasonable to dismiss his anxieties without investigating further.  

Helpful interim guidance on remote hearings has been issued as part of the Equal Treatment Bench Book.   This includes the comment:

"We know that the pandemic has left many cases languishing and the natural inclination is to get them heard ASAP. But that understandable imperative must be tempered by natural justice considerations."

The challenges of “the current climate” must not be allowed to dilute these natural justice considerations which apply to case management as much as substantive decisions.