M v Press Association
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 23 June 2016 |
| Neutral Citation | [2016] EWCOP 34 |
| Docket Number | Case No: COP 12672951 |
| Court | Court of Protection |
| Date | 23 June 2016 |
[2016] EWCOP 34 (Fam)
IN THE COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: COP 12672951
Mr Patel (instructed by Irwin Mitchell Solicitors) for M
Mr Dodd for the Press Association
Hearing dates:
The Court considered written submissions only, on the 22 nd June 2016.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in public.
On 19 November 2015 I handed down judgement in relation to an application made pursuant to section 15 of the mental capacity act 2005 for a declaration determining whether it was in the best interests of a Mrs N to receive life-sustaining treatment by means of clinically assisted nutrition and hydration. At that stage treatment was provided through percutaneous endoscopic gastrostomy tube. In the course of that judgement I considered the medical evidence, the carefully considered views of the family and the framework of the law. I came to the clear conclusion that respect for Mrs N's dignity and human freedom overwhelmed further prolongation of life and I granted the declaration in the terms annexed to the judgement.
In the course of the judgment I had particular cause to commend the family for what I have described as the complete candour of their respective accounts. I observed that none of them made even the slightest attempt to shape the evidence to their preferred outcome. In specific terms I stated "where evidence was ambivalent, in the sense that it carried a potential interpretation which pointed away from the course that they considered to be in Mrs N's best interests, they offered it to me without embellishment or distortion". I went on to observe how each of them had a very different relationship with Mrs N and how in their different ways each loved her but was unprepared to overlook her manifest faults and foibles. I concluded that Mrs N emerged as a woman who could be "capricious selfish and seemingly at times quite shallow" in her interests. That said, I made it perfectly clear that her prevailing characteristics were that she was immensely proud of her family, jealous of her privacy, extraordinary feisty and profoundly loyal to her children. The family's emphasis on Mrs N's basic and unvarnished humanity enabled her own voice to come through to the court room and I was left in no doubt as to what she would have wished for in the parlous situation that she found herself.
The hearing had taken place over four days in early November. On 2 November 2015 I made a reporting restriction order, prohibiting the identification of the first respondent and Mrs N in any press reporting "during her lifetime" I also decided that, for a period of seven days after her death, the injunction should continue.
On 17 December 2015 the applicant, M, applied to vary the RRO to extend its duration until "14 days after the final judgment in the matter of V v Associated Newspapers Ltd" [2016] EWCOP 21. In that case, to which I will refer below, Charles J was considering the scope and ambit of such Reporting Restriction Orders following the death of P. On 13 January 2016 I varied the order in the terms applied for, no party sought to contest it. On 16 December 2015 Mrs N died.
On 25 April 2016 Charles J delivered the judgment in V (supra) and on 4 May 2016 M applied to vary the RRO to extend the duration "until further order of the court". Reliance was placed upon Charles J's judgment in V in support of the application, which was made on notice to the parties and to the press. On 5 May 2016 I refused the application which it had been anticipated might proceed on paper and instead listed a hearing today, 22 June 2016. This hearing is on notice to the press and I have received detailed written submissions from the Press Association opposing the application.
Unlike this case the case of V attracted a considerable amount of adverse media attention which was assessed by Charles J to be "prurient rather than in the public interest". The real interest, he considered, related to:
i) the capacity of an individual to make decisions about serious medical treatment;
ii) the consequences of the conclusion of the Court of protection on whether a person has the capacity to make the relevant decision to refuse life-saving treatment.
By contrast, the reporting in this case has been almost entirely confined to precisely these issues. Mrs M's case was particularly significant to the legal and medical professions because it represented an evolution in the existing case law, extending declaratory relief for the first time, to those in a minimally conscious state (MCS). Such declarations had previously been confined to those in a vegetative state (VS). I do not need further to burden this judgment by expanding my reasoning on these issues, they are in the public domain Re N [2015] EWCOP 76.
In summarising his conclusions, Charles J suggested that the COP should address the following questions:
i) are there good reasons for the hearing to be in public?
ii) if there are should a public hearing be ordered with or without reporting restrictions?
iii) as part of ii: How effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interest that underlie and promote those competing rights and interests?
iv) by reference to the conclusions on the above questions, on Lord Steyn's ultimate balancing test, should the hearing be in private or in public and if in private what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done) and if in public what reporting restrictions order/anonymity order should be made?
In response to the first of those questions Charles J suggested that the answer was almost always going to be "yes" because of the benefits of open justice and so almost always the Re S exercise (see below) will be engaged by addressing points i to iv above.
In paragraph 20 of her judgment, in Re (C) v the Secretary of State for Justice [2016] UKSC 2, Lady Hale considers the framework of the law in this area can now properly be regarded as "trite" (citing Re S (a child) (identification: restrictions on publication) [2005] 1 AC 593) as establishing the general propositions. The essence of the exercise is one of a parallel analysis in which neither the Article 8 ECHR rights, that broadly protect individual privacy, nor Article 10 rights, which safeguard freedom of expression, have precedence. To adopt Charles J's analogy in Re V, it is a clash of titanic proportions in which the public interest in the effective administration of justice plays a significant role. It follows that whilst the framework of the law to be applied is now easy to state its application, in this highly fact sensitive arena maybe anything but.
In Re (C) v the Secretary of State for Justice (supra) Lady Hale articulates the reasoning that underpins the principle of open justice thus:
"The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge. The rationale for the second rule is not quite the same as the rationale for the first, as we shall see. This case is about the second rule. There is a long-standing practice that certain classes of people, principally children and mental patients, should not be named in proceedings about their care, treatment and property. The first issue before us is whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983 ("the 1983 Act"). The second issue is whether there should be an anonymity order on the facts of this particular case.
Lady Hale also makes it clear that there is no presumption of any order in any case:
36. The question in all these cases is that set out in CPR 39.2(4): is anonymity necessary in the interests of the patient? It would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them. On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he is no longer a risk either to himself or to others. That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way which enables the public to identify the patient. It may also be put in jeopardy unless patients have a reasonable expectation in advance that their identities will not be disclosed without their consent. In some cases, that disclosure may put the patient himself, and perhaps also the...
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