R (C) v SSJ [2016] UKSC 2, [2016] MHLO 2

(1) There is no presumption of anonymity in proceedings which are about the compulsory powers of detention, care and treatment under the 1983 Act: in each case the judge must decide whether or not anonymity is necessary in the interests of the patient. (2) On the facts, an anonymity order was necessary in the interests of this particular patient. Extracts from judgment: "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. ... 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 hospital, those treating him and the other patients there, at risk. The public’s right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure. ... I conclude that an anonymity order is necessary in the interests of this particular patient. His regime before he left hospital, involving escorted leave in the community, demonstrated the need for anonymity and the case is even stronger now (as foreseen in R (M) v Parole Board). Without it there is a very real risk that the progress he has made during his long years of treatment in hospital will be put in jeopardy and his re-integration in the community, which was an important purpose of his transfer to hospital, will not succeed. I would therefore allow this appeal and maintain the anonymity order in place."

Related judgments

R (C) v SSJ [2016] UKSC 2, [2016] MHLO 2

ICLR

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Supreme Court

Regina (C) v Secretary of State for Justice (Media Lawyers Association intervening)

[2016] UKSC 2!

2015 Oct 26; 2016 Jan 27

Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Carnwath, Lord Hughes JJSC

Mental disorder — Admission for treatment — Compulsory detention — Claimant committing double murder on release from compulsory detention in psychiatric hospital — Claimant convicted and sentenced to life imprisonment — While serving sentence claimant transferred to high security psychiatric hospital and later to medium security hospital — After completion of tariff period of sentence claimant’s responsible clinician applying for claimant to have unescorted leave in the community so as to assess his suitability for discharge — Application refused by Secretary of State — Claimant seeking judicial review and anonymity order for non disclosure of his identity — High Court dismissing claim and refusing anonymity order — Court of Appeal dismissing appeal against refusal of anonymity order — Whether general presumption of anonymity in civil proceedings relating to patients compulsorily detained in psychiatric hospitals — Whether anonymity order to be made in claimant’s case

The claimant, who had had mental health problems for much of his life, was compulsorily admitted under the Mental Health Act 1983 to a psychiatric hospital. On his release he murdered his former girlfriend and her new boyfriend in a particularly brutal manner. He was convicted of murder in 1998 and was sentenced to life imprisonment with a tariff which would expire in May 2007. However in August 2000 he was transferred to a high security psychiatric hospital pursuant to a direction of the Secretary of State under the 1983 Act. In 2007 he was transferred from a high security hospital to medium security psychiatric hospital and from 2009 he had escorted leave in the community where he did voluntary work. In 2012 his responsible clinician applied to the Secretary of State for the claimant to have unescorted leave in the community, which was an important component in assessing the claimant’s suitability for discharge from hospital. The Secretary of State refused the application. The claimant sought judicial review of the Secretary of State’s refusal and the proceedings in the High Court were anonymised. The judge dismissed the claim for judicial review and refused the claimant’s application for an anonymity order but made an order prohibiting the publication of the claimant’s name pending his appeal. The Court of Appeal refused the claimant permission to appeal against the dismissal of the claim, granted permission to appeal against the refusal to make an anonymity order, dismissed the appeal, but left an anonymity order in place pending an appeal to the Supreme Court.

On the claimant’s appeal —

Held, appeal allowed. The question was whether anonymity was necessary in the interests of the patient. There was no general presumption that an anonymity order should be granted in every case where a patient who was detained in a psychiatric hospital was involved in court proceedings. A balance had to be struck. The issue of anonymity had to be decided in each case by taking into account the public’s right to know, not only what was going on in the courts, but also who the principal actors were, particularly where notorious criminals were involved because the public needed to be reassured that sensible decisions were being made about them. Balanced against that was the purpose of the detention in hospital for treatment, which was to make the patient better so that there was no longer a risk to the patient or to others. The whole therapeutic enterprise might be put in jeopardy if confidential information were disclosed in a way which enabled the public to identify the patient and it might also be put in jeopardy unless patients had a reasonable expectation that their identities would not be disclosed without their consent. The disclosure might also put the patient himself, the hospital, those treating him and other patients there at risk. The public’s right to know had to be balanced against the potential harm, not only to the patient himself but to all others whose treatment could be affected by the risk of exposure. The claimant’s case concerned a horrendous crime which had caused incalculable distress to the victims’ families, who had statutory rights to be informed of arrangements made for the claimant’s discharge. Although the public had an interest in knowing how difficult and sensitive cases of this sort were decided both by the Secretary of State and the court, that public oversight and the interests of the media were protected by holding the hearing in public so that the kinds of evidence and arguments considered were known, even if the identity of the patient concerned was not. Putting in the balance all the general considerations about harm to the claimant’s health and well-being and the chilling effect of a risk of disclosure upon his willingness to be open with his doctors and other carers, and upon his willingness to avail himself of the remedies to challenge the continued deprivation of his liberty long after the period deemed appropriate punishment for his crimes had expired, he was much more likely to be able to lead a successful life in the community if his identity were not generally known. Putting all those factors into the balance an anonymity order was necessary because without it there was a very real risk that the progress which the claimant had made during his long years of treatment would be put in jeopardy and his reintegration into the community, which was an important purpose of his transfer to hospital, would not succeed. Accordingly, the anonymity order would be maintained in place (paras 36 —40).

Decision of the Court of Appeal [2014] EWCA Civ 1009Not on Bailii! reversed.

Appearances:

Stephen Knafler QC and Roger Pezzani (instructed by Guile Nicholas Law) for the claimant.

Katherine Olley (instructed by Treasury Solicitor) for the Secretary of State.

Jude Bunting (instructed directly) for the Media Lawyers Association, intervening by written submissions only.

Reported by: Shiranikha Herbert, Barrister

External links

BAILII!

ICLR

Supreme Court website. This page includes the judgment, a press summary, and videos of the judgment summary and entire hearing