E v Channel Four Television Corporation
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 01 June 2005 |
| Neutral Citation | [2005] EWHC 1144 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD05P00944 |
| Date | 01 June 2005 |
[2005] EWHC 1144 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Justice Munby
Case No: FD05P00944
In these proceedings the Official Solicitor, joined by St Helens Borough Council, seeks an interim injunction to restrain the broadcasting by Channel Four Television Corporation of a film and the publication by the Sunday Times of an article about Pamela. She is a woman of 32, who they assert lacks the capacity to consent to what Channel Four and the Sunday Times are proposing. They invoke the inherent jurisdiction of the court.
Pamela
Pamela was born in 1972. From a very early age she suffered from neglect and emotional abuse. She was taken into care by the local authority. Whilst in care she met Judy, who at that time was employed as a play therapist at a children's hospital which Pamela attended. From 1984 to 1989 Pamela was placed at a Rudolph Steiner school. In 1987, following the breakdown of her previous foster placement, Pamela was placed with Judy and her then husband as foster carers. From 1989 until 1999 Pamela was placed by the local authority in a residential establishment. In 1999 she was removed by Judy who took her to live in her own home. She remained there until her current package of care was set up, following extensive negotiations with the local authority, initially by Judy and subsequently from February 2002 by the Official Solicitor. Pamela now lives in her own house, supported by a large round-the-clock care support team. I have not been told exactly how the team is funded and managed, but as I understand it the funding comes from the local social services and health authorities under the community care legislation—the National Assistance Act 1948, the Chronically Sick and Disabled Persons Act 1970 and the National Health Service and Community Care Act 1990. Although she does not live in Pamela's house, Judy continues to play what is on any view a central role in Pamela's life.
Pamela has a learning disability (mental impairment within the meaning of the Mental Health Act 1983) and has additionally been diagnosed as suffering from DID—dissociative identity disorder. DID, in the view of the Official Solicitor's expert, Dr Milne, is an extremely controversial diagnosis which is probably best considered to be a disorder of personality rather than a mental illness.
Someone suffering from DID manifests on occasions as different "personalities". In Pamela's case there are four personalities in addition to Pamela herself: "Sandra", "Andrew", "Margaret" and "Susan". As can be seen on the Channel Four film, when Pamela is in a dissociative state she switches between herself and her other "personalities", each apparently interacting with the other(s). Thus, for example, the film shows "Andrew" trying to kiss Judy and "Sandra" trying to stop "Andrew" behaving in this way by slapping him—each of these roles being simultaneously played out, often with different facial expressions and in different tones of voice, by Pamela herself.
I should refer at this stage to three professionals who play, or have played, an important part in Pamela's life:
i) Dr Roger Banks is a Consultant Psychiatrist in Learning Disability employed by Conwy & Denbighshire NHS Trust Adult Learning Disability Service. In October 1999 he produced a psychiatric report on Pamela and thereafter provided periodic support for Pamela, Judy and the care team for the next two years. The last time he made a formal clinical assessment of Pamela and her mental state was in May 2002, but he has since kept in touch with her care team informally.
ii) Dr Valerie Sinason (she. is a Doctor ·of Philosophy, not a medical doctor) is a Consultant Psychotherapist and Psychoanalyst. As a Consultant Psychotherapist at the Tavistock Clinic she convened the Learning Disability Workshop for twenty years. She is Consultant Psychotherapist in Learning Disability at St Georges Hospital Medical School Psychiatry of Disability Department and Director of the Clinic for Dissociative Studies. Since September 2000 she has been treating Pamela for intensive weekly psychotherapy.
iii) Graeme Farquharson is a social worker and group-analytic psychotherapist. At one time he was Director of Peper Harow, the well-known residential therapeutic community. Since January 2001 he has attended what he calls the 'Project' (the carefully designed therapeutic environment which facilitates day-to-day life for Pamela) one day a week as a consultant, the focus of his work being with the team rather than with Pamela directly.
The filming
In July 2002 Judy, together with some of the other people involved in Pamela's care, approached Steve Boulton, a film producer, apparently wanting to publicise what they believed was mismanagement and maltreatment of Pamela by the local authority's social services department. In November 2002 Mr Boulton contacted a professional colleague, David Modell, an independent filmmaker and photographer whose principal occupation for the last four years has been making documentary films for Channel Four. Mr Modell had a number of telephone conversations with Judy during November and December 2002 and met Pamela and her care team on 19 December 2002. He met Pamela and her care team, including Mr Farquharson, on two further occasions between then and early March 2003.
Mr Modell's understanding, based on those meetings and discussions, was that Pamela was not, as he puts it, under a care order, and was therefore free to make her own decisions about important aspects of her life, and that there was an ongoing dispute with the local authority about her care package in which the Official Solicitor, having replaced Judy in that role, was acting as Pamela's litigation friend. In his witness statement dated 18 May 2005 he says:
"The involvement of the Official Solicitor did not strike me as being significant, because I was reassured that their role in Pamela's life was limited solely to matters associated with the care dispute. I was not surprised that Pamela had a litigation friend, as. she clearly needed assistance in dealing with complicated legal matters."
Mr Modell went to see Dr Sinason to seek her views about making a documentary about Pamela. He was, he says, interested to know if it would be helpful to Pamela and if she could give meaningful consent to a programme being made. He understood Dr Sinason's view to be that:
"if carried out responsibly the kind of film I was proposing could be extremely helpful for Pamela and for others. She told me that Pamela had the intellectual ability to give informed consent."
In his witness statement Mr Modell describes his thinking at that time and his approach to the project:
"By March 2003 I was satisfied that there was potentially an important and powerful film to be made about Pamela which could be both helpful to her and contribute to public understanding of the condition from which she suffers and issues around mental health generally. Pamela struck me as an extremely impressive woman, who was carrying with her a legacy of abuse and failings in the care system.
I believed that by telling her story in an honest and sensitive way, the public would see a person who, although damaged by awful experiences in childhood, was determinedly attempting to come to terms with her past and move forward in her life in an inspiring way. I also felt that by communicating to the viewer that her condition and the extreme behaviour which accompanies it, is linked to past experiences I could make it understandable and help enlighten the public about those within our society who might frequently be seen as simply 'mad'.
I was well aware by this stage that Judy was in constant dispute with the local authority and held strident views about their perceived inadequacies. It was clear that she hoped the intended programme would reflect her views. I explained that it would not be my intention to focus on this in the proposed programme, and that she must understand that I had to have editorial independence to determine the direction and content of the documentary."
Mr Modell carried out some trial filming of Pamela over three days from 20–22 March 2003. With Pamela's approval a compilation of the material he had shot was shown by Mr Modell in April 2003 to Kevin Sutcliffe, commissioning editor at Channel Four. Mr Sutcliffe indicated that he would support the project and take the first steps toward commissioning the documentary. At subsequent meetings between Mr Modell, Mr Sutcliffe and Jan Tomalin, head of legal and compliance at Channel Four, it was agreed to draw up a production protocol for what they recognised was "clearly going to be a very sensitive film" and also to engage a psychiatric consultant to offer advice during the filming and editing process. In due course Dr Judith Trowell, a Consultant Child & Adolescent Psychotherapist at the Tavistock Clinic, was appointed as psychiatric consultant for the production. As it happens she was aware of Pamela, having assessed her as a teenager in the late 1980s.
Filming of Pamela resumed over two days in May, five days in June and three days in July 2003. The programme was commissioned in early July 2003.
On 14 August 2003 Judy, with the support of the production company, wrote to the solicitors acting for the Official Solicitor in the ongoing dispute about the care package. They responded on 11 September 2003, enquiring when the documentary was likely to be shown and if it was gong to deal with issues relating to the dispute with the local authority.
In the meantime, in late August 2003 Mr Modell had joined Pamela on her...
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