The approach of the court to reporting restrictionsMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMediaMedia(reproduced in full in appendix A)MediaMediaMediaMedia
13.61As we have seen, with the advent of the Transparency Pilot the default position is that there will be open access to hearings, but with restrictions aimed at protecting the identity of P and of P’s family. This is the thrust of the injunctive provisions in the Pilot order,
1Considered in para 13.32 above. and is consistent with the President’s guidance as to the publication of judgments
2Transparency in the Court of Protection [2014] 1 WLR 235, paras 9 and 10 as well as Pilot PD 4A/PD 13A.
3Pilot PD 4A/PD 13A, para 27. In
R (C) v Secretary of State for Justice4[2016] UKSC 2, [2016] 1 WLR 444. (a case concerning proceedings before the Mental Health Tribunal) Lady Hale described the starting point in the jurisdictions dealing with detention, care and treatment of those with mental disorders and disabilities as ‘usually privacy and always anonymity, although either or both may be relaxed’.
13.62The expectation is that statutory bodies or professionals will be identified. In some cases where this has risked ‘jigsaw identification’ the courts have extended anonymisation. In
NHS Trust and Others v FG,5[2014] EWCOP 30, [2015] 1 WLR 1984. Keehan J held that it was not in FG’s interests for the hospital, the responsible Trust or the county in which she resided to be identified. This was because he accepted there was ‘a real risk that if the latter were to be made public it is highly likely FG and /or her baby would be identified given the most unusual circumstances of this case’.
6Para 67.13.63If an application to extend anonymisation is made in a case where an order has already been has been made under the Transparency Pilot, then it will be necessary to notify the media as a result of paragraph 10 of Pilot PD 4A.
13.64The tension between protecting P’s ECHR rights and the freedom of the press has been considered in several judgments since the Court of Protection acquired its welfare jurisdiction. A detailed examination of these judgments is beyond the scope of this book and what follows is only a summary of the key cases. In
Independent News and Media Ltd v A,
7[2010] EWCA Civ 343, [2010] 1 WLR 2262. the Court of Appeal approved the approach that Hedley J had taken at first instance. He had taken a two-stage approach to the application for an order under COPR r91. The first stage was to ascertain whether there was good reason to permit the application. If this is established, the court should proceed to weigh up the competing factors. The Court of Appeal noted the paradox whereby matters in respect of which adults with capacity would take their privacy for granted come before the Court of Protection: the incapacitated adult faces a risk to their privacy (because the relevant decisions are being taken by the court) that an adult with capacity would never face. As the Court of Appeal noted, adults with capacity make decisions about their personal lives all the time, and take their privacy in doing so for granted, but that a person who needs the court to make these decisions, because he or she cannot, faces the potential loss of that privacy as a result.
13.65In
Hillingdon LBC v Neary,
8[2011] EWHC 413 (COP), [2011] COPLR Con Vol 677. Peter Jackson J again noted the salutary impact that publication of information could have, commenting that:
There is a genuine public interest in the work of this court being understood. Not only is this healthy in itself – the presence of the media in appropriate cases has a bracing effect on all public servants, whether in the field of social services or the law – but it may also help to dispel misunderstandings. It is not in the interests of individual litigants, or of society at large, for a court that is by definition devoted to the protection of the welfare of disadvantaged people to be characterised (including in a report about this case, published as I write this judgment) as ‘secretive’. It is part of our natural curiosity to want to know other people’s secrets, and using pejorative descriptions of this kind may stimulate interest. The opportunity, in appropriate cases, to follow a process that has welfare, not secrecy, at its heart can only help the media to produce balanced reporting, and not fall back on clichés.
9Para 15 (emphasis in original).13.66Steven Neary’s name and circumstances had been in the public eye before proceedings had started but there was no evidence that the publicity had or was likely to harm him. Stories about named individuals may hold more interest than those about unidentified people.
10As emphasised in Re Guardian News and Media Limited [2010] UKSC 1, [2010] 2 AC 697. Individuals should not be named at the outset of a case if there is a real possibility that at the end of the case the court would not allow publication; but it would be stultifying to withhold information when it was already in the public domain, as in this case.
13.67This approach is consistent with paragraph 28 of Pilot PD 4A/PD 13A, which, as we have seen, provides that orders will not normally restrict the publication of information that is already in the public domain, apart from in exceptional cases. These could include circumstances where there would be a ‘qualitative difference’ between the level of intrusion that would result from unrestrained publication and the current level.
11For example as in PJS v NGN Ltd [2016] UKSC 26.13.68
W v M (reporting restriction order)12[2011] EWHC 1197 (COP), [2011] COPLR Con Vol 1205. concerned the proposed withdrawal of artificial nutrition and hydration from a M, a minimally conscious patient. In accordance with PD 9E, Baker J directed that hearings should take place in open court. Orders were granted restricting publication which could identify M, her family and care staff, but also restraining the media –who were not represented – from contacting anyone on a list of 65 persons involved in caring for M. Baker J agreed to reconsider the order on receipt of a letter from Times Newpapers Ltd expressing concern that the media had not been notified of the full nature of the orders to be sought and had therefore been unable to make representations.
13.69Baker J held that:
•While PD 13A
13Now Pilot PD4A in cases on the Case Management Pilot. does not require the applicant to serve a draft order, it is essential for the applicant to give an outline of the orders sought and the applicant must indicate the categories of people whose identities it is proposed will be kept confidential.
•If the applicant seeks restrictions on contact by the media with individuals or categories of persons, the application must make this clear.
•There is no automatic precedence between the Article 8 rights of P or P’s family and the Article 10 rights of the media organisations.
•There must be a proper evidential basis for concerns about the risk of harm from an interference with the Article 8 rights of P or P’s family.
•The public interest in freedom of expression in medical cases will usually lie in information being available about the general issues rather than the identity of individuals.
•There is a public interest in the practices of the Court of Protection being better understood and the urge to take an over-protective stance should be resisted.
•Celebrity cases and super-injunctions involve balancing the same convention rights, but the circumstances of the individuals concerned are so different that decisions in the two types of cases are unlikely to be relevant to each other.
13.70In
Westminster City Council v Sykes14[2014] EWHC B9 (COP), (2014) 17 CCLR 139. (which pre-dated the Transparency Pilot) DJ Eldergill decided to allow the publication of the names of Manuela Sykes and the local authority where she had once been a councillor and which was at the time depriving her of her liberty. Ms Sykes had been a political campaigner all her life and had always wanted to he heard. On learning of her diagnosis of dementia she had shared her experiences on the internet, campaigning for the rights of those with the condition. Her personality and wishes were a magnetic factor in the balancing exercise.
Restrictions after P’s death
13.71As we have seen Pilot PD 4A/PD13A specifies that reporting restriction orders should last only as long as necessary to achieve their purpose. Some orders may need to last until P’s death; and in some cases longer.
15Pilot PD 4A/PD 13A para 29 where it applies. Three recent cases have considered the question of anonymity after P’s death.
13.72In
V v Associated Newspapers Limited16V v Associated Newspapers Limited and others [2016] EWCOP 21, [2016] COPLR 236. Charles J considered an application following the death of C whose case had come before the Court of Protection for determination as to her capacity to consent to renal dialysis.
17Kings College NHS Foundation Trust v C and V [2015] EWCOP 80, [2016] COPLR 50.13.73A reporting restrictions order was made at the outset of the proceedings (in standard terms for a serious medical treatment case) restricting reporting of information leading to the identification of C and her adult daughters. The order was expressed to have effect during C’s lifetime. After a hearing at which it was determined that C had the capacity, such that the Court of Protection had no jurisdiction, C died.
13.74The case was the subject of considerable media interest, and both the tactics adopted by some reporters and the style of some reporting caused distress to C’s family. The adult daughters applied for a continuation of the reporting restriction order; by the time that the matter came finally to be determined by Charles J, the relevant media organisations did not contest that the order should be continued to the 18th birthday of C’s teenage daughter, although raised an issue as to whether the order could be made by Charles J as a Court of Protection judge (as opposed to a High Court judge). Subsequent to the hearing, a further application was made that the order be extended to cover C’s inquest, which the media organisations did not resist, and which Charles J found to be justified on the particular facts of the case, especially given the prurient nature of the reporting that had taken place.00a
13.75Much of the judgment, therefore, consisted of determination of general principles for future guidance, rather than the resolution of a contest as to how they should apply upon the facts of the instant case. The following conclusions he reached are key.
13.76First: the Court of Protection has jurisdiction to make a post-mortem reporting restrictions order (although in the instant case, and on a ‘belt and braces approach,’ Charles J also made the order as a High Court judge to avoid any future jurisdictional arguments). Further, reporting restrictions orders in serious medical treatment cases can extend beyond the death of the subject of those proceedings and there is no presumption or default position that such orders should end on P’s death.
13.77Second: the Court of Protection should generally address the following questions:
•Are there good reasons for the hearing to be in public?
•If there are, should that public hearing be ordered with or without reporting restrictions? As part of that determination, how effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?
•In light of the conclusions as to these questions, and applying the ultimate balancing test required by
Re S (A Child) (Identification: Restrictions on Publication),
18[2005] 1 AC 593. should the hearing be in private or in public? If in private, which documents (with or without redactions and anonymisation) should be made public (and when and how should this be done)? If in public, what reporting restrictions order / anonymity order should be made?
13.78Third, the answer to the first question is almost always going to be ‘yes’ because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing the second and third questions.
13.79Fourth: a distinction can be made between (a) cases where pursuant to the default or general position under the relevant Rules or Practice Directions the court is allowing access (or unrestricted access) to the media and the public, and (b) cases in which it is imposing restrictions and so where the court is turning the tap on rather than off. However, Charles J emphasised that this distinction only reflects the strength of the reasoning underlying those Rules and Practice Direction that in many, perhaps most, cases the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved. The distinction therefore provides weight to the general arguments for anonymity to promote the administration of justice by the court generally and in the given case. The distinction therefore does not undermine the general proposition that naming people has a valuable function of rendering news stories personal and therefore effective as journalism.
19See Re Guardian News and Media Limited [2010] UKSC 1, [2010] 2 AC 697.13.80Fifth, the weight to be given to the ‘naming proposition’ and the conclusion as to what generally best promotes the administration of justice will vary from case to case, and may require specific consideration (and reasons) in specific cases. Charles J gave some useful examples of how these considerations might apply in different cases:
•If the case involves a celebrity but otherwise is not out of the ordinary, the court will be exercising a well-known decision making process, and the difficulty or impossibility of providing effective anonymisation may found a decision not to order a public hearing. The question for the trial judge will therefore be what (if any) document or judgment should be made public;
•If the case involves a celebrity but raises new or unusual points and so is out of the ordinary this may found a decision for a public hearing with no (or unusual) reporting restrictions;
•Where findings of serious mistreatment or malpractice are sought or when a member of a family wants (or has initiated) publicity that identifies P and family members issues will arise whether: (1) there should be a public hearing with no reporting restrictions (so the rival arguments and assertions are made public and linked to identified individuals); or (2) whether there should be a private hearing (with disclosure to relevant bodies or persons).
13.81In
University College London Hospitals NHS Foundation Trust v G,
20University College London Hospitals NHS Foundation Trust v G (by her litigation friend the Official Solicitor) [2016] EWCOP 28. Peter Jackson J refused an application by the treating Trust and supported by G’s family, to extend a reporting restriction order in relation to G, which was to end a month after her death. Noting that the names of those who are born and those die are a matter of public record the judge found that although the circumstances of G’s death were understandably distressing, there was no evidence that her identification would harm family members or significantly infringe their privacy. Hayden J reached a similar view in
M v Press Association,21M v Press Association [2016] EWCOP 34. addressing himself to the questions which Charles J had formulated in
V v Associated Newspapers. He did not consider that M or her family were at risk of intrusive commentary and noted that intrusion by the media on the family’s grief would breach the IPSO Code of Conduct. He took the unusual step in his judgment of providing details of IPSO’s website.
22www.ipso.co.uk/IPSO/harassment.htmlRestrictions on disclosure of documents
13.82A final, related, series of points should be noted as regards witness statements and/or other documents filed on behalf of a party. First, where a document has been filed or disclosed, a party to whom it was provided may only use it for the purpose of the proceedings in which it was filed or disclosed, except where:
a)the document has been read to or by the court or referred to at a public hearing (NB, which is now the majority of hearings in proceedings under the MCA 2005); or
b)the court otherwise permits.
23COPR Pr5.10/COPR r18. 13.83Second, a party to proceedings may (subject to any order to the contrary) inspect or obtain from the records of the court a copy of any document filed by a party to the proceedings.
24COPR Pr5.8/COPR r16.13.84Third, where the application has been for the appointment of a deputy or the variation of the order under which the deputy was appointed, the Public Guardian is entitled to be supplied with copies (among other things) of documents filed in the proceedings relevant to the decision to appoint the deputy, any powers conferred upon him, any duties imposed on him if the Public Guardian reasonably considers it necessary for him to have regard to them for purposes of the discharge of his statutory functions in relation to the supervision of deputies. The court can limit disclosure of particular documents or categories of documents or direct that the documents are provided on an edited basis.
25COPR Pr5.12(1)–(6)/COPR rr20(1)–(6).13.85Finally, upon application, the court may authorise a person who is not a party to proceedings to inspect documents in the court records or to obtain a copy of any such documents or extracts from such documents.
26COPR Pr5.9(2)/COPR r17(2). The court must consider whether to provide any document on an edited basis.
27COPR Pr5.9(4)/COPR r17(4).