Media privacy of severely disabled musical prodigy protected

28 April 2010 by Elspeth Wrigley

A (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) v INDEPENDENT NEWS & MEDIA LTD & ORS [2010] EWCA Civ 343 – Read judgment

This appeal was bought on behalf of a severely disabled adult (known as “A”), against the order of Hedley J of 19 November 2009 that the media should be granted access to a hearing in the Court of Protection.  The Lord Chief Justice has refused the appeal.

The case was unconventional, largely because of A’s own situation.  A had been totally blind from birth and suffered from acute learning difficulties associated with Autism Spectrum Disorder, which meant that he was not able to lead an independent life and was dependent on others for his care.   Despite this, however, A had taught himself the piano and had gone on to become an extraordinary gifted musician, and was described by the judge as ‘a man of remarkable accomplishment’.  

As a result, however, his activities and personal affairs attracted media attention, and A’s family, who were described as ‘close and devoted’, wished the hearing be held in private.  The family’s view was supported by the Official Solicitor acting on behalf of A, who opposed the medial application.

The Lord Chief Justice refused the appeal, on the grounds that Hedley J had reached the correct conclusion in his original judgment.  In reaching this decision the Judge considered the origin and purpose of the Court of Protection, created by the Mental Capacity Act 2005.  He recognised the importance of preserving the privacy of individuals under the 2005 Act at paragraph 13,

“The new statutory structure starts with the assumption that just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business.  Hearings before the Court of Protection should be in private unless there is a good reason why they should not.”

However, the judge also recognised that A had a public profile, arising from the combination of his medical condition and musical talents and that a significant amount of information about his life was already in the public domain.  The judge also highlighted the importance of allowing the media to understand the process in the Court of Protection.  At paragraph 16 he found that,

“While the presence of a small number of media representatives would somewhat reduce the privacy of the proceedings, it would enable those representatives to be fully aware of the issues which may be of legitimate interest to the public and make better informed submissions to the judge about the matters for which publication should be authorised.”

In the original hearing, the Court of Protection had granted limited authorisation to a selected number of representatives of the media to attend the hearing.  These representatives could not, without further authorisation from the judge, publish any information derived from the hearing.  The judge considered this provided an adequate balance between A’s rights to privacy and the media’s right to freedom of information.  Given that the appeal process should not interfere unless the judge in the lower court had erred in principle or reached a conclusion that  this was plainly wrong, the Lord Chief Justice refused to interfere with the Court of Protection’s findings.

Although not central to his findings, the judge also considered the relationship between Article 8 and Article 10 of the European Convention of Human Rights (“ECHR”).   At paragraph 21, he made the following observation on the relationship between the 2005 Act and Article 8:

“the considerations which arise under article 8 are effectively encompassed within the legislative structure of the 2005 Act and the rules made under it.  The privacy rights of those involved in proceedings in the Court of Protection are addressed by the over-arching principle that the hearing should normally be a private hearing from which the media, or indeed any outsiders, are excluded.”

The judge recognised that the public interest may, exceptionally, outweigh the privacy which those with disabilities would normally expect in the Court of Protection.   However, it was the judge’s view that Article 8 would add very little to the exercise of power under the 2005 Act, as great weight would always be given to any actual or potential invasions of family or private life.

In relation to Article 10, the judge considered this had to been engaged at the time the instant application was made by the media.  However, although he differed in this respect from Hedley J, he did not consider Hedley J’s decision to have been flawed, as a finding that Article 10 was engaged at an earlier stage would simply have enforced the Court of Protection judge’s view that the media were entitled to be present.