23 April 2020

Interim hearings by video link: a temporary necessity or a pragmatic approach for the future?

Restrictions brought about as a result of the COVID-19 pandemic have had a significant impact on the Scottish court system’s ability to make any real progress with court business. Part of the difficulty, it seems, is the reliance on paper bundles.

In that respect, the healthcare regulators might be one step ahead. For some time now, they have been making efforts to embrace technology with the use of electronic bundles of papers, iPads for Tribunal members, and witness evidence by video link where necessary. It is against this backdrop that the regulators have been able to adapt relatively quickly to deal with urgent hearings.

The Medical Practitioners Tribunal Service (MPTS) has postponed most of its hearings in response to the current restrictions, but there are some urgent matters that can’t be deferred. These include hearings of the Interim Orders Tribunal (IOT) which must go ahead in order to ensure public protection.

The way in which IOT hearings are being conducted at present offers an interesting study on the application of video link facilities to urgent regulatory and court hearings.

IOT hearings (which look at whether interim restrictions should be placed on a doctor’s registration) ordinarily take place at the MPTS in Manchester and, save in exceptional circumstances, it is expected that the doctor will attend, regardless of where they are based in the UK.

Due to the current restrictions, the MPTS is conducting IOT hearings by video link until further notice. The aim is for the set-up to be as close as possible to being physically present in the hearing room. The Tribunal members and the parties are all visible on screen and the structure of the hearing is unchanged. Every effort is being made by all involved to adapt quickly to this new way of working and, importantly, the basics were already in place.

Whilst there is no doubt that there are numerous benefits to being in the hearing room, there’s something to be said for the efficiency of having an interim hearing – by its very nature a hearing convened at short notice – dealt with by video link. This is particularly true for those registrants and their representatives who are not local to the MPTS in Manchester.

It is ordinarily expected that registrants will attend an IOT hearing in person. This is partly because it is seen as an acknowledgement of the seriousness of being called before their regulator and a demonstration of their readiness to do whatever is asked of them. For those advising the registrant, there is the concern that an adverse inference might be drawn from the doctor’s non-attendance unless they have good reason. This tends to outweigh any practical difficulties or expenses.

But this temporary period of change is an interesting one from the perspective of registrants and their advisors. It has forced an examination of whether video link facilities could be put to good use in certain circumstances. An interim hearing, where there is no assessment of the facts, no calling of witnesses, perhaps lends itself quite well to alternative set-ups.

All those involved in regulatory or court matters at present are faced with the practical difficulties of dealing with urgent hearings, and it presents an opportunity to consider whether, even beyond these times, the use of video link facilities might offer a pragmatic alternative set-up for urgent hearings in certain circumstances.

Contact

Cara Docherty, Associate E:  cdo@bto.co.uk T:  0141 225 5276