Application by BBC for review of transparency order rejected by Court of Protection

The Court of Protection has dismissed an application made by the British Broadcasting Corporation (BBC) for a review of a transparency order, with a view to including the situation of a vulnerable young man within a BBC documentary.

In British Broadcasting Corporation v Cardiff Council & Ors [2024] EWCOP 50 (T3) (30 August 2024), Mr Justice Hayden concluded: “I am clear that MC's treatment is poised at a very delicate stage.

"His participation, however limited, in a programme which will inevitably and no doubt properly contain criticisms of the mental health system, is fraught with danger for MC. That danger is not confined to his immediate situation but risks having an adverse impact on his whole life.”

The case concerned MC, who has a range of difficulties, mostly stemming from attachment and anxiety disorders. He also has a moderate learning disability and a diagnosis of ADHD.

The judge said: “Going on hunger strike is the most recent manifestation of the manner in which MC dysfunctionally tries to establish some control over a life which he feels does not afford sufficient respect to his autonomy.”

However, he noted that by the time of the present hearing, MC had started eating again, and his ADHD medicine had had some “positive effect”.

Some months ago, MD’s behaviour was such that he required 4:1 supervision.

Mr Justice Hayden said: “The Court of Protection proceedings, which I have been hearing, were adjourned and remain adjourned in consequence of a dramatic deterioration in MC's behaviour. The proceedings were stayed and MC was detained for treatment under the aegis of the Mental Health Act 1983, at a mental health unit in South Wales.”

The judge observed that both MC and his mother found that period, and the months that followed to be “extremely distressing”.

He noted that MC’s mother had become angry and frustrated about the quality of treatment available for her son, and what she regards as the scarcity of resources within the system for people in his situation.

He said: “Her resolve to help him and others in his situation, I am impressed, is genuine and public-spirited.”
In the present case, the British Broadcasting Corporation (BBC) applied for a review of a Transparency Order, made in June 2022, with a view to inclusion of MC's situation within a BBC documentary.

The judge stated: “The BBC applies for the discharge or variation of paragraphs 6(i)(a), (b) and 6(ii) of the Court's Transparency Order. These variations are sought to permit the BBC to: (i) identify MC, CD (his adoptive mother), JD (his adoptive father), and CD's parents; and (ii) to identify MC's current accommodation as a secure specialist mental health unit in Cardiff.”

The BBC did not seek to name the mental health unit, nor any individual involved directly in MC's care (save for a clinical psychologist formerly involved in MC's care, with her consent).

Outlining the key considerations, Mr Justice Hayden said: “The real question, as I see it, is whether if this programme were to go ahead involving MC to the circumscribed extent that is contemplated, it could do so without interfering with his Article 8 rights. He is, on any view, an extremely vulnerable young man. The evidence of his vulnerability is, as will emerge below, so cogent as to be redundant of any contrary coherent argument.”

He set out Articles 8 and 10 as follows:

Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others...

Article 10 Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Mr Justice Hayden said: “There are two competing rights involved. One is freedom of expression, freedom of the press, a fundamental right protected by Article 10 which requires jealously to be guarded. And the other is the broad umbrella of MC's rights to family life i.e., to privacy, and to appropriate and proportionate protection of his vulnerability as an adult with disabilities.”

The Health Boards' position was that they opposed the application made by the BBC because of “real concern” about the potential for adverse impact on MC's personal and private life should the application be granted.

Counsel for NHS Wales Shared Services Partnership submitted that there could be “no advantage of any kind at all” for MC of participating in the programme, however, there would be “real potential for harm”.

The judge noted: “There is, as I have said, no doubt that MC has latterly made real progress. Perhaps the most powerful evidence of that comes not from the evidence of the Trust, nor indeed from the litigation friend, but from MC's mother (CD). Her obvious delight and relief in her son's recent improvement, having gone through what have plainly for both been the darkest of hours in some very difficult years, was almost palpable.”

He added: “In my judgement, the risk of jeopardising that progress, recognising the enormous importance of it in unlocking (almost literally) MC's potential to live a more unrestricted life which promotes his autonomy, weighs very heavily when considering his Article 8 rights.”

Dr R, employed by the Health Board as a Consultant learning disability psychiatrist, highlighted the following concerns to the court:
• A significant risk of MC becoming aware of the programme and his story being told, however peripherally, and destabilising the positive progress MC has achieved during his current admission as well as the risk of disrupting the therapeutic work which is positively impacting on reducing restrictive practices and which unfortunately has not been possible to progress in the community.
• MC needs to feel secure in his relationships and trust those supporting him. This is best achieved by providing MC with consistent information, having a united front where he experiences good communication from those supporting him and keeping clear agreed boundaries. Any divide between professionals, staff and family is likely to be detrimental to MC's well-being and therapeutic progress. It is possible that varying/discharging the transparency order might have a negative impact on the unity of his supporting MDT acknowledging many of the professionals feel strongly it would not be in his best interest.
• The proposed programme has the potential to deter the available opportunities for identification of a permanent long-term placement for MC with providers being fearful of future media attention.
• MC is a very sociable person often speaking to members of the public whilst out in the community. The application refers to MC not being aware of the broadcasting of a programme; however there is no way for care staff to manage who MC comes in to contact with whilst in the community or their reactions if they were to have observed the proposed programme and given MC is very recognisable in his appearance. It is entirely possible he could approach a member of the public and initiate a conversation and be met with a response regarding the programme. There is real potential for this to startle MC, dysregulate him and to subsequently increase his sense of unease and distrust of those supporting him.

The judge observed: “As I have stated, I have spoken to MC on a number of occasions. I agree with both his mother and Dr R that he is a very sociable person. I can easily recognise the descriptions of him speaking to members of the public whilst out in the community.”

He noted that sometimes MC’s behaviour is “frightening and violent”, generated by his anxiety. He said: “Those witnessing it who did not know about MC's experiences and functioning would undoubtedly be critical of him. The behaviour has been described to me as a dysfunctional mechanism intended to assert control over a situation which has spiralled out of his control. It is this combination of MC's gregarious, engaging sociability and his frightening and violent behaviour, when distressed, which makes him so vulnerable.”

He added: “It also requires to be said that MC is very recognisable. He has a consuming interest in dying his hair, which has been a variety of colours in the time I have known him. Mostly, the colours are vibrant, bold and conspicuous. I have no doubt that there is a real risk of him being recognised in his community and that he will be defenceless in protecting his own privacy.”

The judge outlined his concern that MC is unable to weigh and assess the advantages to him, personally, of participation in the contemplated programme, and weigh them against any identified disadvantages.

Dismissing the BBC’s application, Mr Justice Hayden concluded: “I am clear that MC's treatment is poised at a very delicate stage. His participation, however limited, in a programme which will inevitably and no doubt properly contain criticisms of the mental health system, is fraught with danger for MC. That danger is not confined to his immediate situation but risks having an adverse impact on his whole life.

“I reiterate the professional aspiration for MC is to afford him the opportunity to develop his potential to the full and achieve some degree of independent living. Jeopardising that opportunity would require me to identify a competing interest that should be afforded greater weight. That has not been established in this case and I am entirely satisfied that MC's Article 8 rights are supported by qualitatively greater evidence than that which can be afforded to the Article 10 rights of the BBC. For these reasons, I dismiss the application.”

Lottie Winson