Rashid Maqsood Abbasi v Newcastle Upon Tyne Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWCA Civ 331 |
| Docket Number | Case No: CA-2021-001660 AND CA-2021-001673 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 331
The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lady Justice King DBE
and
Lady Justice Carr DBE
Case No: CA-2021-001660 AND CA-2021-001673
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
The President of the Family Division
Royal Courts of Justice
Strand, London, WC2A 2LL
Bruno Quintavalle (instructed by Andrew Storch Solicitors) for the Appellants
Gavin Millar KC and Fiona Paterson (instructed by Sintons Law and Hill Dickinson Solicitors) for the Respondents
Fenella Morris KC (instructed by The Royal College of Nursing) for the First Intervener
Jenni Richards KC (instructed by The British Medical Association) for the Second Intervener
Alex Ruck Keene KC (Hon) (instructed by Bevan Brittan) for the Third Intervener
Alistair Robertson and Hannah Sladen of DAC Beachcroft for the Fourth and Fifth Interveners
Hearing dates: 15 and 16 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is the judgment of the court to which we have all contributed. These appeals concern the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order (“RRO”) made long before in end-of-life proceedings in the High Court. Such orders often protect the identities of all those involved in the care of a patient in respect of whom an application to withdraw treatment is made. That is usually to protect the privacy of the patient, of the patient's immediate family and of those concerned in the treatment of the patient as well as to safeguard the integrity of the proceedings. Such proceedings are apt to generate a great deal of passionate debate which spills over into harassment of those involved in the proceedings, picketing of hospitals and interference with the working of the hospitals. There are too many who involve themselves in these kinds of debate who lack all sense of proportion and display intolerance of anyone who disagrees with them. Some are not willing to admit that there may be two legitimate points of view. Nonetheless, the circumstances in which it is lawful or ethical to withdraw treatment is the subject of legitimate debate.
The context of the appeals is the modern practice in the Family Division of the High Court of granting indefinite anonymity orders to a wide range of medical (and non-medical) carers in cases of this kind. On 23 June 2021 Sir Andrew McFarlane P (“the President”) dismissed separate applications by the parents of two children to discharge the RROs made in each case: [2021] EWHC 1699 (Fam).
Rashid and Aliya Abbasi are the parents of Zainab, who was six years old when she died on 16 September 2019. That was shortly after proceedings had been issued by Newcastle Upon Tyne Hospitals NHS Foundation Trust (“Newcastle”) for a declaration under the inherent jurisdiction of the court that it would be in Zainab's best interests for life-sustaining treatment to be withdrawn and for only palliative care to be provided. Lanre Haastrup is the father of Isaiah who died on 7 March 2018. He had been born on 18 February 2017. The King's College Hospital NHS Foundation Trust (“King's”) obtained a declaration in proceedings under the inherent jurisdiction of the High Court that it would be in Isaiah's best interests that his treatment, in particular his ventilation, be withdrawn. Indefinite RROs were made in both cases. They were made in support of the integrity of the proceedings and the administration of justice and to protect the interests of those affected by the proceedings. But they now have the effect of preventing the parents meaningfully discussing or writing publicly about the circumstances in which their respective children were treated and died, or mainstream media from doing so if the parents were to spark interest in the circumstances of the cases. In Zainab's case they could not name the small cohort of medical professionals protected by the RRO or give away information that would enable them to be identified. In Isaiah's case the range of medical staff and other staff protected is very wide indeed and the difficulties even greater.
Zainab's parents and Isaiah's father, supported by Isaiah's mother, Ms Takesha Thomas, appeal against the orders made by the President.
We have had the benefit of written submissions from several interveners, namely the Royal College of Nursing, the Faculty of Intensive Care Medicine, the Royal College of Paediatrics and Child Health, the Paediatric Critical Care Society and the British Medical Association.
The Facts
Zainab
Zainab was born on 27 June 2013 with a rare and profoundly disabling inherited neurodegenerative condition known as Niemann-Pick Type C. She also contracted swine flu in 2016, which resulted in lung damage.
Zainab's parents are both medical professionals. They had disagreements with Newcastle, under whose care Zainab was throughout her life. At one point the police were called to remove her father from the ward where she was being treated. Her parents favoured more active treatment than the palliative care being recommended by the treating team.
On 28 August 2019 Newcastle commenced the best interest proceedings. A few days before the substantive hearing was due to take place Zainab died.
Since Zainab's death, her parents have remained critical of Newcastle's treatment of their daughter. Their complaints are both systemic (concerning the regime operated in the Paediatric Intensive Care Unit) and operational (relating to individual members of staff). They consider that the unit is so dysfunctional that the care of its patients is compromised. Other families will have been affected as they have been. They wish to publicise the care given to Zainab and to name those involved. They hope that, by bringing these matters to the more general attention of the public, an investigation will follow, resulting in radical change.
Isaiah
Isaiah was born with a severe hypoxic brain injury on 18 February 2017 at King's College Hospital. That injury was the result of negligence on the part of the hospital staff. He was deprived of oxygen for a significant period during birth. He was initially cared for in the Neonatal Intensive Care Unit and then moved to the Paediatric Intensive Care Unit at King's. Isaiah remained fully dependent on intensive care support for his needs and was unable to breathe independently.
King's obtained the declaration that it was in Isaiah's best interests to withdraw treatment on 29 January 2018. Following an unsuccessful attempt by his parents to appeal, Isaiah died on 7 March 2018 after the removal of ventilation.
Isaiah's parents have been critical of King's care surrounding Isaiah's birth. King's accepted liability for his brain injury and have settled the parents' claim for compensation. An inquest, which will focus on the circumstances of his birth, was opened but was adjourned in July 2020 pending clarification of the scope of the reporting restrictions in place. At the inquest it was the position of King's that the reporting restriction order extended to the coronial proceedings. If correct, that would result in the anonymisation of all those whose conduct was under scrutiny at the inquest in much the same way as sometimes happens at inquests involving members of the armed forces or police who have used lethal force.
The RROs
The Abbasi RRO
Newcastle applied for a reporting restriction order to protect the identity of Zainab, her family, the Trust, the hospital and a small number of clinicians concerned in her case. Newcastle pointed to the recent cases of Charlie Gard ( Great Ormond Street Hospital for Children NHS Foundation Trust v Yates (No 2) [2017] EWHC 1909 (Fam); [2017] 4 WLR 131) and Alfie Evans ( Evans v Alder Hey Children's NHS Foundation Trust [2018] EWCA Civ 805; [2018] 2 FLR 1269) and said that identification of the hospital or members of the clinical team caring for Zainab would result in intense attention from the public. Those two cases attracted interest from campaigning groups and from individuals who behaved badly during the proceedings, with accompanying social media threats to medical and legal professionals involved. If something similar happened, it would adversely affect not only the care provided to Zainab but also the care being provided to other children in the hospital. Newcastle's position initially was that balancing the media's free speech rights against the privacy rights of Zainab and her family, it was necessary and proportionate to make the order sought “until the proceedings have been concluded”. These arguments referred to articles 10 and 8 of the European Convention on Human Rights (“the Convention”), which protect the right to free speech and private and family life respectively.
On 6 September 2019 MacDonald J ordered that all further attended hearings in the proceedings would be in public. He imposed a temporary RRO. Newcastle applied for a continuation of that order, relying on a statement from two of Zainab's treating doctors. They stated, in summary, that without anonymisation of Newcastle itself, identification of the hospital, treating...
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