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June 14, 2021

Barely legal? The experience of remote tribunal hearings

Last week two experiences brought home how wary we should be of assuming that remote communication is as good as in person. I went to my first in-person conference for a long time in a hotel near Woking. It was a socially distanced conference on police custody. For the most part it felt like going back in time…in a good way. I had conversations with new people and with people I had not talked to (online or otherwise) since before the pandemic. I had unplanned, unexpected conversations. Even with break-out rooms, no online conference can recreate this.

Later that week a teacher friend told me about a “team around the family” meeting she had attended. This family is in crisis, and social services, school staff and the family were meeting to discuss how the children could best be supported. The whole meeting was supposed to be online but the mother didn’t understand this and turned up physically at the school (which she comes to twice a day). The school provided her with a laptop and sat her down alone in a room, while the teachers involved sat in a separate room on another laptop. During the online meeting the mother started weeping alone in the schoolroom, and her ex partner, who had joined the meeting on his mobile phone, was cut off half way through because he ran out of phone charge.

These scenarios illustrate that sometimes in person is superior – because it leads to better and more humane human interaction. This is supported by a new report on tribunal justice during the pandemic. The report was completed last summer but unpublished till recently, maybe promoted by my Freedom of Information request. Its findings are based on surveys of and interviews with judges  – only one cohort of users – but it is the best insight we have yet into online Tribunal hearings.

Perhaps the strongest insight is “horses for courses” – remote actually did work well for some things. In tribunal hearings video and phones were used extensively, with judges acting remotely from their homes. The report suggests that where users were professionals and where litigants were represented by lawyers, remote generally worked fine, but where users were in any way socially excluded or vulnerable there were often problems…but not always.

The contrast between the SEND (special educational needs) tribunal and the mental health tribunal illustrates the differences. The SEND tribunal hears cases about whether children should be assessed as SEN and how their needs should be supported. The families of the children involved are often vulnerable and often unrepresented. SEND judges felt that remote hearings were more accessible – familes could take part from home – and parties often found them less stressful online. The majority of judges felt it was easy to communicate with parties to SEND hearings, though counter-intuitively they felt phone communication was easier than video.

But judges who presided over mental health tribunals were pretty damning about the move to remote. Mental health tribunals make decisions as to whether individuals should have their liberty or not – should they be detained in the first place and should their detention continue? If sectioned how should they be treated? Access to the hearing itself was often difficult since mental health patients did not have their own equipment or did not have adequate access to the internet. Also technical problems beset hearings – a judge said that only one in 19 hearings had no technical issues.

It was concerning to have a patient who was not able to continue attendance via phone as they ran out of credit on their mobile and their benefits had not been sorted. At least in physical hearings patients are likely to be able to attend (especially for Community Treatment Order cases) as they may well get a lift from the care coordinator if no other means- however regarding remote hearings really vulnerable patients are at the mercy of digital poverty issues- and hence the hearing can be inequitable. In the case described above, the judge called the patient (anonymising their number) which was the only way the patient could continue participating in their hearing- this needs to be addressed.” (Respondent 120, Mental Health Tribunal)

Mental health patients in secure settings had to borrow iphones or share laptops with their own doctors to take part in hearings. Not surprisingly, this led to patients leaving hearings early, or not turning up in the first place. Judges couldn’t work out whether the patients were understanding the hearing and whether they needed reasonable adjustments: “Hard to know how the patient is reacting and read cues. Sometimes the actual technology adds to the patient’s paranoia as they are suspicious about electrical devices to begin with. There have been proportionately more walk outs compared to normal face to face hearings. Also, many patients have not met their reps in person, which can add to their anxiety and lack of trust.”.

Many participants in tribunal hearings are vulnerable whether because of physical disability, mental health issues or difficulties with language. Significant proportions of judges surveyed felt that vulnerability was more difficult to identify remotely, particularly if the participants were on the phone. Where there was no relevant information in the papers and no representative, how could they judge whether a party was at a disadvantage?

“Whilst respondents considered that remote hearings had reduced psychological barriers to attending hearings for some, these had been amplified for others: particularly those with low levels of digital literacy and confidence; English as an additional language; those on low incomes; parties experiencing mental health problems; and parties with hearing and learning difficulties”.

What is slightly surprising is that so many hearings have continued when its doubtful they were legal. If reasonable adjustments are not made for a disabled person, that service is breaking the law. The continuing holding of remote mental health tribunals seems particularly risky, given the High Court in January ruled that mental health assessments used to detain mentally ill people must be done in person not on video.

There are many parallels between the experience of remote justice in tribunals and in criminal courts. But we sorely lack the solid evidence in criminal. No one was brave or foolhardy enough to commission a study such as this on tribunals – to let hundreds of judges give their views. Let’s hope this report leads to an open debate about what to keep and what to jettison of pandemic justice.

 

 

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