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Reporting restrictions in end of life cases

Rosalind English analyses an important High Court ruling on anonymity for treating clinicians in 'end of life' cases.

The focus of the judgment in Rashad Maqsood Abbasi and Aliya Abassi (Applicants) v Newcastle upon Tyne Hospitals NHS Foundation Trust (Respondent) and PA Media (Intervener) [2021] EWHC 1699 (Fam) and Takesha Thomas and Lanre Haastrup (Applicants) v Kings College Hospital NHS Trust (Respondent) and PA Media (Intervener) [2021] EWHC 1699 (Fam) was on the jurisdiction, if any, that the High Court Family Division has to maintain a Reporting Restriction Order (‘RRO’) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child who had been the subject of “end of life” proceedings before the High Court prior to their death, and where an RRO had been made at that time preventing the identification of any of the treating clinicians and staff until further order.

Each of the children, Zainab Abbasi and Isaiah Haastrup, had been the subject of end of life proceedings under the inherent jurisdiction of the High Court, in which the issue was whether life-support should be withdrawn from them. Each of the two children died; Zainab Abbasi dying after the issue of proceedings but before the court could conduct a substantive adjudication, and Isaiah Haastrup dying following the removal of life-sustaining ventilation at the conclusion of a full legal process including an application to the Court of Appeal. In both cases, widely drawn RROs were made during the proceedings.

Dr and Mrs Abbasi are both medically qualified. Their daughter had been born with a rare and profoundly disabling inherited neurodegenerative disease (Niemann-Pick Type C). They disagreed with the regime of palliative care given to their child by the hospital and after her death, they remained profoundly critical of the care that their daughter received and, more generally, of the actions of those in charge of the PICU. Moreover, they considered that the unit was operated in a wholly dysfunctional manner to a degree that was detrimental to the care of the young patients for whom it it was responsible. They believed that other families had been similarly affected by the negative impact of this allegedly dysfunctional regime. They therefore wished to publicise the care that was given to their daughter and, in doing so, use the names of those involved in the provision of her treatment so that the parents, as whistle-blowers, might bring these issues to the more general attention of the public in the hope that an investigation will follow which will result in radical change.

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Isaiah Haastrup was born in February 2017. During the process of birth his brain was deprived of oxygen for a very significant period with the result that, by the time he was born, his central nervous system was in a profoundly compromised position and permanently dependent upon a ventilator to sustain life. In March 2018, in accordance with an order made in the High Court and following refusal of permission to appeal to the Court of Appeal, Isaiah died after he was removed from the ventilator.

A claim by Isaiah’s parents for damages for clinical negligence relating to the circumstances of his birth had recently been settled. The NHS trust accepted responsibility and an agreed figure of damages was paid to the parents.

The Senior Coroner for London is undertaking an Inquest into Isaiah’s death. The court was told that the focus of the inquest is upon the circumstances surrounding Isaiah’s birth, rather than the decision to withdraw life support and his subsequent death. It was, apparently, only on the second and final day of the Inquest that the question of reporting restrictions was addressed. Having considered the terms of the High Court RRO relating to Isaiah, the coroner adjourned the inquest pending clarification from the High Court as to the scope and continuation of the RRO in Isaiah’s case.

Both sets of parents sought orders immediately discharging the RRO applicable to their child’s case. The two relevant NHS hospital trusts opposed the discharge applications. They maintained that the RROs should remain in force indefinitely.

The central issue of law therefore which had to be determined related to the jurisdiction of the High Court to maintain, or to re-impose, a RRO protecting the anonymity of clinicians and other treating staff involved in the care of a deceased child, who was the subject of ‘end of life’ proceedings under the inherent jurisdiction, where the RRO would remain in force for a significant period following the child’s death.

Arguments before the Court

The issue before the court related to the exercise of rights under Article 8 (family life) and Article 10 (freedom of expression) in the European Convention on Human Rights (‘ECHR’). This was a conflict between the rights of two groups of individuals, namely, the hospital staff and the parents in each case. In ECHR terms it was, therefore, a ‘horizontal’ dispute. It was not a dispute between the State and the parents (in ECHR terms a ‘vertical’ dispute).

Where such a horizontal dispute comes before a court, and the court has jurisdiction to provide a remedy, there is then a positive obligation on the court, as a public authority, not to act in a way which is incompatible with the ECHR (as per Section 6 of the Human Rights Act 1998 s 6).

The respondents relied upon Lord Steyn’s analysis of such a horizontal dispute under the ECHR in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593:

First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.

In cases where an individual’s privacy is in issue, the courts have the power to make anonymity orders thus fulfilling United Kingdom’s positive obligation under article 8 of the Convention to secure that other individuals respect an individual’s private and family life. In other words, the Respondents contended that once an issue on disputed rights was before the court, that was sufficient to establish jurisdiction to issue or continue anonymity orders following the balancing act set out in Re S. They placed significant weight upon evidence of the potential for there to be a highly negative impact on individuals, and upon the staff collectively, in the event that the parents’ stories were taken up and given prominence in social and/or mainstream media. Reference was made to the adverse impact on the staff involved in the high profile cases of Charlie Gard (Great Ormond Street Hospital v Yates [2017] EWHC 1909) and Alfie Evans (Evans v Alder Hey Children’s NHS Foundation Trust [2018] EWCA Civ 805).

They adduced evidence from other cases demonstrating that, once named, staff may become vulnerable to physical attacks and/or personal attacks in social or mainstream media. In each case the NHS Hospital Trust asserted Article 8 rights on behalf of their staff. As for the countervailing right to freedom of the press:

There is no presumption in favour of Art 10 rights in a horizontal dispute. Even where a case is heard in open court, that factor does not, of itself, determine whether anonymity should be afforded to a witness. In these cases all but a few of the staff were not witnesses at all. They are not public figures and have not sought publicity. The court should apply an intense and very close focus on the activities of the NHS and, in particular, the activity on a PICU which is, of its nature, private.

The applicants asserted that the court no longer had jurisdiction to impose or renew RROs in this matter. The previous existence of best interest proceedings relating to a now deceased child did not permit the court to entertain a later application concerning the continuation of a reporting restriction injunction. Whilst reserving their position as to whether the court has power under the inherent jurisdiction in any event to prevent the naming of parties or witnesses in proceedings during the life of the child, if it did have such powers they only exist to serve the purpose of the litigation, namely adjudication upon issues relating to the child’s terminal treatment. They submitted that, at the point at which the purpose of the proceedings comes to an end with the death of the child, so too does the jurisdiction (if it exists) to grant injunctions. They focussed upon the respondent hospitals’ concession that, absent a freestanding claim under the tort of misuse of private information, the hospital staff would have no right to claim an injunction if there were no other extant proceedings. The primary case that the applicant parents promoted was that the hospitals were simply unable to establish a process by which to bring this issue before a court for determination in a manner that is ‘prescribed by law’ for the purposes of Article 10. A Re S compliant balancing exercise, argued the applicants, in order to establish whether a proposed limitation on free speech was ‘necessary in a democratic society’, could only be undertaken within a procedure which is, itself, ‘prescribed by law’.

The applicants observed, further, that leading paediatric consultants were publicly named on the hospital’s web-pages.

The general law does not prohibit a patient who is unhappy with treatment speaking out and naming the staff involved and there would be no breach of any legal right held by a named doctor were this to occur. Whilst a doctor is under a duty of confidentiality, a patient is not. If a patient’s words are defamatory, then the doctor will have a legal remedy.

It was also argued on behalf of the Haastrup parents that the original RRO should not have been made in the form that it was made and anonymity should not have been granted to individuals who were neither parties nor witnesses. The Family Court, it was submitted, had no jurisdiction to grant a RRO to cover the identification of anyone who was not a witness or who had otherwise been named in the proceedings, save, possibly at a very early interim stage before any witness statements have been filed. The original RRO was therefore made without jurisdiction and should be discharged. To do otherwise would be an abuse of process.

As for the intervening party, PA Media, its basic premise was that ‘it would be absurd if there is no jurisdiction to anonymise clinicians and family members following the death of a child in these cases’. There would be a chilling effect on clinicians if they knew that there was no power to provide anonymisation. The intervener therefore endorsed the submissions of the respondents on the question of jurisdiction. Citing the words of Lieven J in Manchester University Foundation NHS Trust v N [2020] EWHC 6 (Fam)

many people may find it traumatic to be named in the press in the course of litigation, and that is no ground to grant anonymity. However, the position of treating professionals is somewhat different. There is a significant public interest in allowing them to get on with their jobs, and in minimising the disturbance to them and their other patients whilst they are providing that care.

The hospitals’ response to the applicants’ argument was simple. This was a horizontal dispute about rights, where the court was discharging the positive obligation on a State under Article 8 to protect the Article 8 rights that had been brought before it on the facts.

The Court refused the application.

Reasoning behind the Court’s decision

As to the jurisdictional issue, the RROs were still in force, since these orders had been expressly made on the basis that they would have effect during the life of the child and thereafter [my italics]. And since the court had made an order which was currently in force, it had jurisdiction to review the continuation of that order.

The court was faced with a horizontal dispute between individuals under the European Convention via the Human Rights Act 1998. The balancing act should be carried out following Lord Steyn’s model in S (A Child), Re [2004] UKHL 47. Once it had done the balancing exercise the outcome should be marked by deploying the power under section 37 of the Senior Courts Act 1981.

The court observed that the practice in recent times, as represented by the orders made in these two cases and in Re M, was for judges to grant RROs protecting the anonymity of treating clinicians and others in a manner which is wholly contrary to the approach taken in A v Ward (A Child), Re [2010] EWHC 16 (Fam). That practice has been endorsed by the Court of Appeal in Re M.

It was time to draw a line under Ward (A Child), Re [2010] EWHC 16 (Fam), [2010] 1 F.L.R. 1497, [2010] 1 WLUK 47 insofar as it purported to establish that anonymity was not to be afforded to a “class” of professionals unless there were compelling reasons for doing so. This judgment had to be regarded as per incuriam and should not be followed. In accordance with S (A Child), there should be no default position, or requirement for “compelling reasons”, in such cases. Any such application should turn on its own facts, as to the significant negative impact that the unrestricted and general identification of treating clinicians and staff might generate.

Why should the law tolerate and support a situation in which conscientious and caring professionals, who have not been found to be at fault in any manner, are at risk of harassment and vilification simply for doing their job? In my view the law should not do so, and it is wrong that the law should require those for whom the protection of anonymity is sought in a case such as this to have to establish ‘compelling reasons’ before the court can provide that protection. [para 96]

As for the balancing exercise itself, – In determining where the balance lay, neither the Article 8 rights of the NHS staff nor the Article 10 rights of the parents had precedence. As for the parents’ rights, there had been no fact-finding process or specificity regarding the substance of the allegations they wished to make, nor indeed the identity of those they wished to name. Without such detail, the court had no means of evaluating what, if any, public interest there might be in what was to be said if the RROs were lifted.

The Article 8 rights of the treating clinicians had to be considered in a different light. The potential for the clinicians to become vulnerable to physical or personal attacks and to suffer adversely in terms of their mental health and wellbeing if named had to be taken seriously. The potential negative impact upon morale, integrity of the staff group and its ability to function, and upon staff recruitment and retention for those providing care for the most vulnerable and sick children was of real concern. When this strong and detailed case in favour of the continued protection of staff anonymity was put against the unelaborated and simple assertion of the right to free speech, the result of the balancing exercise was plain to see.

There was a two-fold justification for interfering with the parents’ rights to free speech. Firstly, there were countervailing Article 8 rights attaching to the staff. Secondly, there were the interests of public safety and the protection of health which would be adversely affected if the staff were exposed. The balance was firmly in favour of the maintenance of anonymity. Although retaining the RROs was a continuing infringement of the parents’ rights, it was both necessary and proportionate to do so. The parents could explore other remedies, namely formal disciplinary processes, civil proceedings or internal complaints procedures.

The orders in each case would be amended to reflect the changed position following the death of the children and would remain in force until further order.

Rosalind English is a former academic who co-edits 1 Crown Office Row's UK Human Rights Blog.

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