In the matter of proceedings brought by Kings College NHS Foundation Trust concerning C (who died on 28 November 2015) v The Applicant and Associated Newspapers Ltd and others  EWCOP21 – read judgment
The Court of Protection has just ruled that where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death.
I posted last year on the case of a woman who had suffered kidney failure as a result of a suicide attempt has been allowed to refuse continuing dialysis. The Court of Protection rejected the hospital’s argument that such refusal disclosed a state of mind that rendered her incapable under the Mental Capacity Act. An adult patient who suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment (King’s College Hospital NHS Foundation Trust v C and another  EWCOP 80).
The case attracted a considerable amount of media attention most of which was characterised by the judge as “reporting the prurient interest of the public in the personal details of the lives of others rather than the public interest in important issues”.
The application before Charles J in this case was for an extension of a reporting restrictions order that had been made earlier but which came to an end on C’s death. The Judge concluded that restriction orders should be continued, and that his order should cover the reporting of C’s inquest.
Reasoning behind the judge’s decision
Charles J reminded the parties that reporting restrictions orders in serious medical treatment cases can extend beyond the death of the subject of those proceedings and that there was no presumption or default position that such orders should end on that person’s death.
In this case the Article 8 rights of C’s family were engaged.
The publicity following the COP’s original order on capacity included an interview with one of the deceased’s daughter who had
persuaded a judge that her 50-year old mother – who wants to die because she thinks she has lost her “sparkle” -[was] mentally capable of deciding to refuse medical treatment in hospital.
The evidence before Charles J was that both daughters had been distressed by having had to be involved in the original COP proceedings, and the extensive media interest in the information about their mother and the family that had been provided to the court, which appeared to them to have been precipitated by a wish
to attract prurient interest in their mother’s sexual and relationship history
After C died, there were numerous attempts by the press to interview members of her family. It was “obvious” to Charles J that the naming or other identification of the deceased and her family would increase the distress already caused by the press comments and photographs. It was inevitable, he said, that in making a decision about C’s capacity in the original proceedings the COP had to consider evidence about
emotional and deeply personal issues relating to both C and members of her family … that were relevant to the question whether C could make the decision to refuse life-saving treatment for herself and to the consequences of her doing so.
As for the competing Convention rights (the family’s Article 8 rights to privacy and the importance of free press reporting under Article 10), the judge relied upon the ruling of the Supreme Court in R(C) v Secretary of State for Justice  UKSC 2 where Lady Hale observed:
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.
Because the COP often has to investigate and make findings regarding individuals’ mental capacity, plainly that jurisdiction invades the private and family life of the subject of the proceedings. It brings to light decisions that that person could have made in private, and which related to very personal matters, all of which become the subject of court proceedings because the person involved lacks the relevant capacity. In a case such as this, the applicant was relying upon the duty of the court not to act in a way that would be incompatible with the Convention rights of C’s family. The COP has the jurisdiction under its rules and practice as well as the common law to establish the “reasonable expectation of privacy and the Article 8 rights of C’s family”.
The essential reason for the engagement of those Article 8 rights is that the COP has invaded their private and family lives and made a finding on its jurisdiction that has had a profound effect and impact on C’s family and is based on evidence that relates to the private and family lives of C and her family (and in particular her children).