Rashid Maqsood Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P |
| Judgment Date | 23 June 2021 |
| Neutral Citation | [2021] EWHC 1699 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD19P00457 and FD17P00299 |
| Date | 23 June 2021 |
[2021] EWHC 1699 (Fam)
THE PRESIDENT OF THE FAMILY DIVISION
Case No: FD19P00457 and FD17P00299
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Lock QC and Ms Katie Williams-Howes (instructed by Imran Khan Solicitors) for the Applicants
Mr Gavin Millar QC and Ms Fiona Paterson (instructed by Sintons) for the Respondent
Mr Vikram Sachdeva QC, Mr Jack Anderson and Ms Rachel Sullivan (instructed by PA Media) for the Intervenor
Mr Bruno Quintavalle (instructed by Moore Barlow LLP) for the Second Applicant
Mr Gavin Millar QC and Ms Fiona Paterson (instructed by Hill Dickinson LLP) for the Respondent
Mr Vikram Sachdeva QC, Mr Jack Anderson and Ms Rachel Sullivan (instructed by PA Media) for the Intervenor
Hearing dates: 3, 4 and 5 February 2021
Approved Judgment
Introduction
The focus of this judgment is upon the jurisdiction, if any, that the High Court Family Division has to maintain a Reporting Restriction Order (‘RRO’) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child who had been the subject of “end of life” proceedings before the High Court prior to their death, and where an RRO had been made at that time preventing the identification of any of the treating clinicians and staff until further order.
It is right to stress that this judgment does not purport to determine whether the High Court has jurisdiction to make an RRO within end of life proceedings during the child's life and/or extending for a short period following the child's death. Whilst the question of whether the High Court has any jurisdiction to make a RRO to protect the anonymity of treating clinicians at any stage of proceedings under the inherent jurisdiction relating to a child's care was raised, for the first time, in the latter stages of oral submissions, it is not necessary to determine that issue for the purposes of these two applications which each relate to the question of whether a RRO can be continued, or re-imposed, a significant time after the child has died. Judges of the Family Division have for some years made RRO orders in such cases without the existence of the underlying jurisdiction apparently being challenged. This judgment is therefore based upon the assumption that the jurisdiction to make the original RROs in these two cases exists. The validity of that assumption may fall to be determined in other proceedings on another day following a process during which the point has been made squarely and thoroughly investigated prior to the hearing and during submissions, which, as I have indicated, was not the case here.
The Applications
The court currently has before it two separate sets of applications relating to two different children. Each of the children, Zainab Abbasi and Isaiah Haastrup, was the subject of end of life proceedings under the inherent jurisdiction of the High Court, in which the issue was whether life-support should be withdrawn from them. Tragically each of the two children died; Zainab Abbasi dying after the issue of proceedings but before the court could conduct a substantive adjudication, and Isaiah Haastrup dying following the removal of life-sustaining ventilation at the conclusion of a full legal process including an application to the Court of Appeal. In both cases, widely drawn RROs were made during the proceedings with the consent of, or at least without opposition from, the children's parents. Each of the two RROs is of unlimited, open-ended, duration and each purports to cover all those who are employed by the relevant NHS hospital trust and who played any part in the provision of care or treatment to the child. Now, each of the two respective sets of parents seeks to be released from the RRO so that they may speak publicly about their experiences and, in doing so, be free to identify NHS staff who were involved in caring for their child. By coincidence the two applications were made within a short time of each other. Whilst the factual circumstances underlying each case are inevitably different, the same legal issues largely arise. The two cases have therefore been heard together with the agreement of all parties.
The detailed factual background to each of these cases is of limited relevance to the issue before the court. Insofar as the two sets of parents may seek to criticise individual clinicians, neither has revealed to the court the identity of those whom they would wish to name or, other than in general terms, the nature of any criticism. It is of note that both sets of parents have expressly declined to seek findings of fact at this hearing. However, the following brief summary may assist in understanding the description of the core position of each of the parties before the court that then follows.
Zainab Abbasi: background
Tragically, Zainab Abbasi was born in June 2013 with a rare and profoundly disabling inherited neurodegenerative disease (Niemann-Pick Type C). In addition she contracted swine flu in 2016 which resulted in lung damage.
Both of Zainab's parents are medically qualified, in particular, her father, Dr Rashid Abbasi, is a Consultant Respiratory Physician working in the NHS. For much of Zainab's life the treatment plan delivered by the Newcastle upon Tyne Hospitals NHS Foundation Trust was controversial as between the treating consultants and the child's parents. In essence, the treating team recommended only palliative care, whereas the parents favoured more active treatment. Further, and particularly so in the later months, the parents became more and more critical of the overall regime under which the hospital's Paediatric Intensive Care Unit (‘PICU’) operated and the way in which care was delivered to their daughter by individual staff members. Matters deteriorated to the extent that the hospital sought to prohibit the father from attending the ward and when he did so, the police were called and he was forcibly removed.
In August 2019 the hospital issued proceedings in the Family Division seeking a declaration that it was in Zainab's best interest for life-sustaining treatment to be withdrawn. At an early hearing Lieven J made a RRO which included a prohibition on the publication of the parties' names and any information which may lead to their identification or the identification of any person who had the care of Zainab. The case was set down for final hearing on 19 September 2019 but, on 16 September, Zainab sadly died.
On 31 July 2020, Lieven J varied the RRO (by consent) to allow for the publication of the parties' names.
Dr and Mrs Abbasi remain profoundly critical of the care that their daughter received and, more generally, of the actions of those in charge of the PICU. Moreover, they consider that the unit is operated in a wholly dysfunctional manner to a degree that is detrimental to the care of the young patients for whom it is responsible. They believe that other families have been similarly affected by the negative impact of this allegedly dysfunctional regime. They therefore wish to publicise the care that was given to their daughter and, in doing so, use the names of those involved in the provision of her treatment so that the parents, as whistle-blowers, may bring these issues to the more general attention of the public in the hope that an investigation will follow which will result in radical change.
Isaiah Haastrup: background
Isaiah Haastrup was born in February 2017. During the process of birth his brain was deprived of oxygen for a very significant period with the result that, by the time he was born, his central nervous system was in a profoundly compromised position and permanently dependent upon a ventilator to sustain life. In March 2018, in accordance with an order made in the High Court and following refusal of permission to appeal to the Court of Appeal, Isaiah died after he was removed from the ventilator.
A claim by Isaiah's parents for damages for clinical negligence relating to the circumstances of his birth has recently been settled. The NHS trust has accepted responsibility and an agreed figure of damages has been paid to the parents.
The Senior Coroner for London is undertaking an Inquest into Isaiah's death. The court has been told that the focus of the inquest is upon the circumstances surrounding Isaiah's birth, rather than the decision to withdraw life support and his subsequent death. It was, apparently, only on the second and final day of the Inquest that the question of reporting restrictions was addressed. Having considered the terms of the High Court RRO relating to Isaiah, the coroner adjourned the inquest pending clarification from the High Court as to the scope and continuation of the RRO in Isaiah's case.
The Position of the Parties
The position of each of the parties can be briefly stated. Both sets of parents seek orders immediately discharging the RRO applicable to their child's case. The two relevant NHS hospital trusts, which have been jointly represented by counsel before this court, oppose the discharge applications. They maintain that, with some contextual amendment to reflect the circumstances as they now are, following each child's death, the RROs should remain in force indefinitely. Alternatively, the hospital trusts have made a cross-application for the court to make a new RRO in each case in the event that the parents are successful in their discharge applications. The deceased children are, inevitably, no longer parties to the court proceedings and have not been represented....
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