Life or death injunctions not so super (or controversial)

19 May 2011 by Alasdair Henderson

W v. M, S, an NHS PCT and Times Newspapers Ltd. [2011] EQHC 1197 (COP) – read judgment. In the midst of all the fuss over the last two weeks about ‘superinjunctions’ and the law on privacy (see our coverage here, here, here and here) the Court of Protection (“CoP”) has just granted an injunction imposing extensive reporting restrictions on the media in a case involving potentially controversial end-of-life issues.

The press has picked up on the decision mainly because the injunction is the first in the UK courts (and perhaps anywhere in the world) to specifically prohibit publishing restricted information on any “social network or media including Twitter or Facebook“. This is noteworthy given the recent furore about an anonymous Twitter user ‘outing’ a number of UK celebrities who had obtained injunctions (although given that Twitter is a US-based website, it is difficult to see how the order will be enforced). But the decision by Baker J is far more interesting for the way he described how the media’s free speech rights should be balanced against the parties’ privacy rights in the kind of sensitive cases dealt with by the CoP, and how he expressly distinguished it from the approach taken in celebrity cases.

The facts

The case, which is due to be heard in July, concerns a 43-year-old woman (“M”) who suffers from profound brain stem encephalitis and has since 2003 been in a ‘minimally conscious state’. M’s family members have come to the clear view that she would not wish to continue living in such a state and have sought an order from the Court of Protection that would permit her doctors and carers to withdraw artificial nutrition and hydration and allow her to die. Although similar orders have been granted before, this is the first case where the person is not in a permanent vegetative state.

The ‘secretive’ Court of Protection

Hearings in the CoP are normally held in private, which has led to much criticism from some quarters (see our recent post on the issue here). Baker J robustly defended this position, noting that since the CoP is concerned with the weak and vulnerable, and has to make decisions for those who lack the capacity to make decisions for themselves, it was quite understandable that Parliament decided the default should be privacy.

However, Baker J also noted that some of the CoP’s work should be conducted in public, particularly matters which involve serious medical treatment or life-and-death decisions. In such cases the judge may impose reporting restrictions to protect the privacy of the family involved. An injunction had already been made in the present case which banned publication of any information that could be used to identify any of the parties, and which also banned the media from contacting 65 people involved in caring for M. This second part of the order caused some consternation in the press, and The Times wrote a letter to M’s solicitors complaining that it went too far.

The CoP decided to review the injunction and decide whether it had the power to restrain the media from communicating with any person, and if so whether it should exercise that power in this case.

The decision

Baker J held that the Mental Capacity Act 2005 and the Court of Protection Rules 2007 undoubtedly gave the CoP the power to impose reporting restrictions of this kind. The next question – to what extent that power should be used – was to be answered, pursuant to the Human Rights Act, by balancing articles 8 and 10.

The Times argued that in balancing article 10 rights with article 8 rights in such a context reporting restrictions should only be made where they were shown to be necessary, and then defined in the least restrictive way possible.

However, Baker J dismissed this argument (which was, in effect, that article 10 should be given priority) and held that in the CoP neither article 8 nor article 10 has automatic precedence over the other because the default position was for hearings to be in private, unlike other courts where the default position is for public hearings. He then went on to make several further comments about the balancing of article 8 with article 10 in the peculiar context of the CoP, including:

• There may be cases where it is not just articles 8 and 10 which are engaged, but article 6 is also in play; for example where attempts by the media to contact litigants might affect their willingness to participate in the litigation;
• The article 8 rights of the family members of an incapacitated person might need to be taken into account as well;
• The public interest in freedom of expression arising in serious medical cases such as the present case usually lies in the general issues that arise, not the identity and personal circumstances of the incapacitated person in question; and
• It must be borne in mind that it is in the public interest more broadly for the practices and procedures of the Court of Protection to be more widely understood.

No celebrity scandals here, please

The most interesting comment from Baker J was his last:

It is of course the case that the [CoP]…is considering the same human rights as usually arise in the so-called superinjunction cases in the Queen’s Bench Division, in which celebrities and others seek to restrain publication concerning their private lives. Both jurisdictions are applying the same statute, namely the Human Rights Act, and will continue to do so unless and until Parliament passes a new privacy law. Both jurisdictions involve the balancing exercise, usually of articles 8 and 10. But the conduct of that balancing exercise will invariably be very different in the [CoP] because of the circumstances of those whom the court is seeking to protect…Decisions on the conduct of the balancing exercise between competing Convention rights in celebrity cases are unlikely to be of any relevance to decisions in the [CoP] or vice versa.

On the facts of the present case – including concerns that some of the family members would not want to take part in proceedings if they could be contacted by the media – Baker J granted the injunction in terms which banned publication of information which would reveal M’s identity and prevented any attempts to approach M’s care home or family.

The more general point to take from this decision, though, is that not all injunctions and reporting restrictions are to do with footballers’ embarrassing dalliances or BBC reporters’ affairs. Any discussion and debate about the correct balance between privacy and free speech must also consider the approach that should be taken in the very different context of highly sensitive decisions about life and death.

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• Max Mosley – enough already
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