Re M (A Patient) (Court of Protection: Reporting Restrictions)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Neutral Citation | [2011] EWHC 1197 (Fam) |
| Date | 2011 |
| Year | 2011 |
| Court | Family Division |
Practice - Court of Protection - Restriction on publication - Proceedings relating to withdrawal of treatment, food and hydration from adult patient lacking capacity - Judge directing hearing to be in open court but imposing reporting restrictions and prohibiting media contact with family and carers - Media challenging scope of order - Exercise of power to make order prohibiting media contact - Balance between competing Convention rights - Guidance when imposing reporting restrictions -
Where the Court of Protection exercises its power pursuant to rule 92 of the Court of Protection Rules 2007F1 to order that any hearing, which would otherwise be held in private, shall be held in public subject to appropriate reporting restrictions in relation to the publication of information about the proceedings, the court in deciding what restrictions are appropriate must balance competing rights under the Convention for the Protection of Human Rights and Fundamental FreedomsF2 and neither article 8 (respect for private and family life) nor article 10 (freedom of expression) has automatic precedence over the other. Article 6 may be engaged where it is asserted that the publication of information relating to proceedings, or attempts by the media to contact litigants, would affect the capacity or willingness of a party to participate in the litigation. The article 8 rights not only of the person lacking capacity but of other family members may require consideration, and, when focusing on the article 8 rights of the person lacking capacity and of any other relevant person, the court should consider the nature and strength of the evidence of risk of harm, for which there must be a proper factual basis. The public interest in freedom of expression arising in serious medical cases will usually lie in the general issues arising on an application for an order which might have the effect of leading, directly or indirectly, to the shortening of the life of the person lacking capacity, as opposed to that person’s identity and personal circumstances. The court must bear in mind that it is in the public interest for the practices and procedures of the Court of Protection to be more widely understood and, where a case warrants an exception to the general rule that its proceedings should be held in private, the court should ensure that reporters are free to give as full a picture as possible of the court proceedings (post, paras 31–33, 37, 38–42, 62).
Where, therefore, in best interest proceedings concerning the future medical treatment of a minimally conscious adult patient and of a proposal to withdraw artificial nutrition and hydration from her, the media challenged and the judge reviewed the scope of an interim order precluding publication of any information likely to lead to identification of the patient, her family and care staff and restraining the media from contacting or communicating with 65 named individuals—
Held, making an order in agreed terms, that the balance manifestly fell in favour of properly protecting the article 6 and 8 Convention rights of the patient and her family and restricting the media’s article 10 freedom of expression to reporting the issues, evidence and arguments; and that an order would therefore be made, inter alia, prohibiting, pursuant to rule 92(2) of the 2007 Rules, the publishing of any information likely to lead to the identification of the patient, any person a party to the proceedings, any witness other than an expert witness, any past or present treating health care professional or member of the patient’s care team, and the care home where the patient resided, and prohibiting those bound by the order from communicating with the patient and certain members of the family unless invited by their respective solicitors to do so, or from approaching the patient or the care home for the purpose of seeking information about the patient or the proceedings (post, para 66, Appendix).
Per curiam. (i) Unless and until different guidance is provided, the model form used by courts in the Family Division should, with appropriate modifications, be adopted and used for reporting restriction orders in Court of Protection cases. Careful consideration must always be given to the precise terms to be included in the order which will always be determined by the specific facts of the individual case (post, paras 25, 26).
(ii) Judges and practitioners in the Court of Protection must be on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise. Decisions in so-called super-injunction cases in the Queen’s Bench Division, in which celebrities and others seek to restrain publication concerning their private lives, are unlikely to be of any relevance to decisions in the Court of Protection or vice versa (post, paras 43, 44).
The following cases are referred to in the judgment:
A Local Authority v W
Campbell v MGN Ltd
Donald v Ntuli (Guardian News & Media Ltd intervening)
H v News Group Newspapers Ltd
Hillingdon London Borough Council v Neary
Independent News and Media Ltd v A
Practice Direction (Applications for Reporting Restriction Orders) [
Practice Note (Official Solicitor: Deputy Director of Legal Services: CAFCASS: Applications for Reporting Restriction Orders) [
S (A Child) (Identification: Restrictions on Publication), In re
No additional cases were cited in argument.
APPLICATION
By an application dated 16 January 2007 W (by her daughter and litigation friend, B), the mother of the first respondent, M, an adult patient, sought declarations that M lacked capacity to make decisions as to her future medical treatment, that it was not in her best interests for artificial nutrition and hydration to be provided and for an order that those treating her might lawfully discontinue and withhold life-sustaining treatment. M’s partner, S, was joined as the second respondent and the NHS primary care trust responsible for M’s treatment was the third respondent. On 8 November 2010 Baker J directed that all further hearings should take place in open court but that any party wishing to apply for an injunction preventing publication of identity or other information should make an application to that effect.
On 14 April 2011, at a hearing where the media were not represented, Baker J granted an application by W for an order precluding the publication of any information likely to lead to the identification of M, her family and the care staff looking after her and restraining the media from contacting or communicating with any of those named individuals covered by the non-communication clause. Although no application was made under the liberty to apply clause in the order, following representations from the media, the judge directed that the matter be restored for a review hearing.
The judgment was handed down in private with leave given to report on the basis that no person, other than the legal representatives and persons identified by name in the judgment, should be identified by name or location.
The facts are stated in the judgment.
Vikram Sachdeva (instructed by
Caroline Harry Thomas QC (instructed by the
James Berry (instructed by
Jane Phillips (instructed by
S did not appear and was not represented.
The court took time for consideration.
12 May 2011. BAKER J handed down the following judgment.
Introduction and background1 In February 2003 M, then aged 43, was admitted to hospital suffering from brain stem encephalitis. Her condition quickly deteriorated and as a result she suffered profound damage and wasting to the brain. For several years she has been in what is described as a “minimally conscious state”, although there is said to be a possibility that she is in fact at a higher level of functioning than she is at present demonstrating.
2 This tragedy has had a devastating impact not only on M herself but also on the lives of her family, including her mother, W, her sister, B, and her partner, S. Those family members have come to the clear view that M would not wish to continue living in her current state and that it is not in her interests to do so. Supported by other family members, her mother W therefore started proceedings in the Court of Protection, seeking a declaration that M lacks capacity to make decisions as to her future medical treatment; a declaration that it is not in her best interests for artificial nutrition and hydration to be provided, and an order that those treating her may lawfully discontinue and withhold all life-sustaining treatment and medical support and instead furnish such treatment and nursing care as may be appropriate to...
To continue reading
Request your trial
-
Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [Court of Protection]
... ... , I was accordingly invited to consider whether or not to exercise my powers under Rule 92(2) to make directions limiting or restricting the reporting of the proceedings. An order was made on that occasion in April, but following objections by the press, a further hearing was convened on 12 May at hich I relaxed some of the restrictions and made an order, which remains in force, and has the effect of prohibiting, for the duration of M's lifetime or until further order, (a) the ... ...
-
Mr Z (and Others) v News Group Newspapers Ltd (and Others)
... ... [2013] EWHC 1150 (Fam) IN THE HIGH COURT OF JUSTICE FAMILY DIVISION Royal Courts of ... rights claims) to make an order restricting the reporting of a criminal trial. In the event of an order being made, ... 30 This statutory protection exists only in respect of children and young persons, and ... be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in ... ...
-
V (Second Respondent in the main proceedings) v Associated Newspapers Ltd and Others
...one of the factors (and so titans) in this case is the administration of justice. 73 As Baker J points out in In re M (A Patient) (Court of Protection: Reporting Restrictions) [2012] 1 WLR 287 at paragraph 44 of his judgment (where he cites from the judgment of Maurice Kay LJ in Donald v Nt......
- Re Al-Hilli (Children: Reporting Restrictions)