Local Authority v Health Authority and another (disclosure: restriction on publication)
| Jurisdiction | England & Wales |
| Judgment Date | 2004 |
| Date | 2004 |
| Year | 2004 |
| Court | Family Division |
Local authority – Social services – Powers – Local authority setting up inquiry into children’s home – Terms of reference of inquiry including vulnerable adults living at children’s home – Whether inquiry into circumstances of adults within local authority’s powers – Local Authority Social Services Act 1970, s 7.
Children and Young Persons – Jurisdiction – Inherent jurisdiction – Protection of children – Children potentially identifiable by publication of anonymised report commissioned by local authority – Whether publication harmful to children – Whether breach of right to private and family life balanced by public interest and right to freedom of expression.
Mental health – Patient – Jurisdiction – Inherent jurisdiction – Vulnerable adults within definition of ‘patients’ potentially identifiable by publication of anonymised report commissioned by local authority – Whether inherent jurisdiction of court exercisable to consider whether publication of report could be restrained in relation to welfare of vulnerable adults – Whether publication harmful to vulnerable adults – Whether breach of right to private and family life balanced by public interest and right to freedom of expression.
The second respondent over many years acted as a foster mother to children with particular difficulties. She later adopted many of the children she fostered. Most remained with her after becoming adults. Following certain investigations into the second respondent’s home the police and social services removed 12 children and encouraged the vulnerable adults then living there to leave. Care proceedings were commenced in respect of the younger children and injunctions were granted against publicity in those proceedings. The applicant local authority commissioned an inquiry and report into the management of the home. The inquiry was set up in the form recommended by the Department of Health guidance. Part 8 of the guidance provided a procedure for case reviews and stated that reports should contain an executive summary that would be made public, including suitably anonymised information about the review process, key issues arising, and the recommendations made. The Pt 8 guidance was exclusively concerned with safeguarding and protecting children. There was no equivalent guidance for
vulnerable adults. The lengthy report, which dealt with both the children and the vulnerable adults, was produced in two volumes. Volume 2 was confidential and was sent to each agency that had taken part in the review process. Volume 1 was entitled ‘Pt 8 case review’. It was intended to be published and was described as an extended executive summary. The first respondent health authority, which had disclosed certain medical records to the inquiry, under confidentiality orders, was concerned that vol 1 had not been sufficiently anonymised. The second respondent, on her own behalf, and the Official Solicitor, on behalf of the children and certain of the vulnerable adults who came within the definition of ‘patients’ in the CPR also objected to the publication on the basis that the children and adults would be easily identifiable and the publication would breach their rights to respect for private and family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998). The local authority applied for an order under the court’s inherent jurisdiction to permit it to publish vol 1, contending that its main aim was to publicise the general lessons to be learned from the inquiry, many of which were of national importance. It relied, inter alia, on art 10 of the Convention, which provided the right to freedom of expression and s 12 of the 1998 Act , which provided that the court must have particular regard to that right. The second respondent contended, inter alia, that the inquiry and report were ultra vires the local authority as the scope of the report had extended to the adults and s 7 of the Local Authority Social Services Act 1970 required a local authority to follow Department of Health guidance which was limited to a consideration of children. The Official Solicitor submitted that the publication of vol 1 would make the children and vulnerable adults easily identifiable, to their real detriment. The issues identified by the court were: (i) whether the inquiry had been ultra vires the powers of the local authority; (ii) whether the court had jurisdiction to prevent publication of the report and; (iii) where did the balance lie between the interests of those objecting to publication and the public interest.
Held – (1) A local authority might hold an inquiry in any form consistent with the appropriate guidance from the Department of Health and its overall statutory duties. In the instant case, the authority had acted intra vires its powers in the form of inquiry it had set up and the report which it had commissioned, despite the misdescription of the inquiry as a Pt 8 review.
(2) The court had the jurisdiction to protect children from harmful publicity if it were satisfied that it was necessary and proportionate to do so in order to protect the rights and welfare of the children. In the instant case publicity was likely to have an adverse effect on children who were already vulnerable. There was a real and substantial risk of press intrusion which would be disruptive to their care and adverse to their welfare. The publication of the report was therefore likely to be harmful to those children now living in the home. The necessary balancing exercise, between the rights and welfare of the children under art 8 and the right of the local authority to publish under art 10,
came down in favour of protection of the children and a restraint on the publication of vol 1 in its present form. Accordingly, the existing injunctions would not be discharged and the appropriate order to ensure compliance would be made.
(3) The basis for the intervention by the court in order to protect the best interests of adults who lacked the capacity to make their own decisions and came within the definition of patients was the principle that the common law was the safety net behind all statute law and was capable of filling gaps left by it if and in so far as those gaps had to be filled in the interests of society as a whole. That intervention was a flexible remedy and adaptable to ensure the protection of a person who was under a disability. Moreover, the Convention obliged the court, as a public authority, to take positive steps. Therefore, in the instant case, the inherent jurisdiction of the court could be exercised in order to consider whether the publication of vol 1 of the report could be restrained in relation to the welfare of the vulnerable adults. The vulnerable adults had rights under art 8 which were engaged which would be breached if vol 1 were published. Those factors had to be balanced against the right of the local authority to publish under art 10, having regard to the importance attached to art 10 by s 12 of the 1998 Act. The balancing exercise came down in favour of recognising the importance of the protection of the vulnerable adults. Accordingly, a declaration would be granted in line with that decision. As such a declaration would not bind the local authority not to publish vol 1 in its present form, an injunction would also be granted. Dicta of Lord Donaldson MR in F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545 applied; Re F (adult: court’s jurisdiction) [2000] 3 FCR 30 and Re SL (adult patient) (medical treatment) [2000] 2 FCR 452 considered.
Cases referred to in judgmentA (medical treatment: male sterilisation), Re[2000] 1 FCR 193, CA.
A v B (a company) [2002] EWCA Civ 337, [2002] 2 FCR 158, [2002] 2 All ER 545, [2002] 3 WLR 542, [2002] 1 FLR 1021.
Butler v Freeman (1756) Amb 301, 27 ER 204.
Campbell v MGN Ltd[2002] EWCA Civ 1373, [2003] 1 All ER 224, [2003] QB 633, [2003] 2 WLR 80.
Douglas v Hello! Ltd (No 3) [2003] EWHC 786 (Ch), [2003] 3 All ER 996.
Douglas v Hello! Ltd[2002] 1 FCR 289, [2001] 2 All ER 289, [2001] QB 967, [2001] 2 WLR 992, [2001] 1 FLR 982, CA.
F (adult: court’s jurisdiction), Re[2000] 3 FCR 30, [2001] Fam 38, [2000] 3 WLR 1740, CA.
F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545, sub nom Re F (mental patient: sterilisation) [1990] 2 AC 1, [1989] 2 WLR 1025, HL.
G (adult patient: publicity), Re[1996] 1 FCR 413.
Gouriet v Union of Post Office Workers [1977] 3 All ER 70, [1978] AC 435, [1977] 3 WLR 300, HL.
Kelly v BBC[2000] 3 FCR 509, [2001] 1 All ER 323, [2001] Fam 59, [2001] 2 WLR 253.
L, Re [1968] 1 All ER 20, [1968] P 119, [1967] 3 WLR 1645, CA.
Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.
S (a child) (identification: restriction on publication), Re[2003] EWCA Civ 963, [2003] 2 FCR 577.
S (hospital patient: court’s jurisdiction), Re[1995] 1 FCR 637, [1995] 1 All ER 449, [1995] Fam 26, [1995] 2 WLR 38, [1995] 1 FLR 302; affd[1995] 3 FCR 496, [1995] 3 All ER 290, [1996] Fam 1, [1995] 3 WLR 78, [1995] 1 FLR 1075, CA.
S (hospital patient: foreign curator), Re[1996] 1 FCR 128, [1995] 4 All ER 30, [1996] Fam 23, [1995] 3 WLR 596, [1996] 1 FLR 167.
SL (adult patient) (medical treatment), Re[2000] 2 FCR 452, sub nom Re S (adult patient: sterilisation) [2001] Fam 15, [2000] 3 WLR 1288, CA.
Spence, Re (1847) 2 Ph 247, 41 ER 937, LC.
Venables v News Group Newspapers Ltd[2002] 1 FCR 333, [2001] 1 All ER 908, [2001] Fam 430, [2001] 2 WLR 1038, [2001] 1 FLR 791.
Wellesley v Duke of Beaufort (1827) 2 Russ 1, 38 ER 236, LC; affd sub nom Wellesley v Wellesley (1828) 2 Bli NS 124, [1824–34] All ER Rep 189, HL.
X (a woman formerly known as Mary Bell) v O’Brien[2003] EWHC 1101 (QB), [2003] 2 FCR 686.
Yousef v Netherlands[2002] 3 FCR 577, ECt HR.
ApplicationBy a claim form dated 27 November 2002 the applicant local authority applied for an...
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