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[2023] WLR(D) 166

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Court of Appeal

Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust

Thomas and another v King’s College Hospital NHS Foundation Trust

[2023] EWCA Civ 331

2022 Nov 15, 16; 2023 March 31

Lord Burnett of Maldon CJ, King, Carr LJJ
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''Children— Court’s inherent jurisdiction— Restriction on publication— Open-ended reporting restriction orders made in end of life cases prohibiting publication of names of NHS trust staff involved in treatment of children— Parents applying to revoke or be released from orders after death of children— Whether High Court having jurisdiction to review orders— Proper approach to such review— Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, arts 8, 10[1]''

In two unrelated cases “end of life” proceedings were brought under the inherent jurisdiction of the High Court to consider whether it was in the best interests of each subject child for life-sustaining treatment to be withdrawn. In the course of each set of proceedings, and without opposition from the child’s parents, the Family Division of the High Court made a reporting restriction order (“RRO”) prohibiting, inter alia, the naming of any medical clinicians involved in the care and treatment of the child. The orders were of unlimited duration and continued after the death of each child. Each set of parents was in some way unhappy with the care their child had received from the treating hospitals and applied to revoke, or be released from, the reporting restriction order so that they might speak publicly about their experiences and, in doing so, be free to identify the NHS staff who had been involved in their child’s care. The issue arose whether the High Court had jurisdiction to maintain, or to re-impose, a reporting restriction order protecting the anonymity of treating staff involved in the care of a deceased child, who was the subject of end of life proceedings under the inherent jurisdiction, where the order would remain in force for a significant period following the child’s death.

The President of the Family Division refused the applications, holding, inter alia, that the court had jurisdiction to review the issue of continuation of the orders in question. Although the primary purpose of the original proceedings under the inherent jurisdiction of the High Court, namely, to determine the all-important issues concerning the welfare of each child, no longer existed the proceedings still continued because a reporting restriction order made in each case, within the course of those proceedings, continued in force. The court was to determine the “horizontal” dispute between the hospital staff and the parents in each case by carrying out the usual balancing exercise between the parties’ respective rights under articles 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms as established by the authorities. In determining whether to grant anonymisation to a group of individuals, based on their membership of a class rather than on any individual vulnerabilities or other features, the correct approach in law was the established balancing exercise between the parties’ competing Convention rights. There was no default position that anonymity was not to be afforded to a class of professionals unless there were “compelling reasons” for doing so. Any application turned on its own facts including the overall context, where that was made out, of the significant negative impact that the unrestricted and general identification of treating clinicians and staff likely generated on both individual staff and the NHS system as a whole, which in the present case was supported by extensive up-to-date evidence. There was no reason why the law ought to tolerate and support a situation in which conscientious and caring professionals, who had not been found to be at fault in any manner, were put at risk of harassment and vilification simply for doing their job.

The claimants appealed on the grounds, inter alia, that (i) there was no jurisdiction to make the RROs or to continue them in the absence of an identifiable cause of action. There was no jurisdiction to make orders preventing the naming of individuals who were neither parties nor witnesses; (ii) in balancing the various rights in play in those cases the President had erred in granting a class claim based on general evidence. Moreover, his approach amounted to “prior restraint” because he required the parents to give greater specificity about what they intended to say. Overall, the balance the President had struck between articles 8 and 10 of the Convention was wrong and he failed to give sufficient weight to the open justice elements in play in the cases.

On the appeals —

Held, appeals allowed. (1) The court had the applicable jurisdiction. The applications in the end-of-life proceedings to the High Court were brought under the court's parens patriae jurisdiction. The court enjoyed all the powers available to it under its inherent jurisdiction and by virtue of section 37 of the Senior Courts Act 1981. Those powers could be exercised to protect the integrity of the proceedings themselves and those involved in, affected by or connected with the proceedings. In using that language, it was not intended to define the limits of the power. The CPR did not expand, still less confine, those powers. It was of no moment that the CPR at the time spoke of parties and witnesses and only later of any person. The High Court had always been able to make orders to protect people who were neither parties nor witnesses. There was, moreover, no need for distinct causes of action to be identified to enable the court to make appropriate orders, including RROs. The Convention rights of those affected by the proceedings had to be considered and, seised of the proceedings, the court was empowered to make such orders as were just and convenient under the inherent jurisdiction and section 37 of the 1981 Act. In particular, it might make such orders as it considered necessary to protect the integrity of the proceedings themselves and the administration of justice. If a hospital trust were seeking an injunction to prohibit the identification of its staff, unconnected with end-of-life proceedings or other underlying proceedings in which they were involved, it would have to establish a cause of action of some sort. Furthermore, the High Court had jurisdiction to entertain an application to set aside the RROs made earlier, not only by virtue of the explicit terms of the orders but also on the basis of an application from a person with a proper interest founded on a change in circumstances. The issue then became whether the orders should be maintained not on the grounds on which they were originally made but in the light of present circumstances (paras 66–68, 131).

(2) Applying the correct approach to articles 8 and 10 of the Convention: whatever might have been the position at the time of the original proceedings and RROs, on analysis the risk to the article 8 rights of the NHS staff generally in the Haastrup case, or the four clinicians in the Abbasi case, by their being identified by the parents and then by the press was low. The possibility of serious and improper secondary activity following the public discussion of the parents of these cases was speculative. After that time and in the light of events features that could properly be said to engage article 8 no longer carried great weight in the ultimate balancing test. By contrast, under article 10 the rights to freedom of expression which the parents wished to exercise would be seriously compromised by the continuation of the RROs. The President laid considerable weight on his view that there was a “lack of any specificity” regarding the substance of the allegations that the parents wished to make, or the identity of those they wished to name when doing so. He recognised in terms that there was no requirement on the parents to tell the court what they wanted to say. The President was of the view that the greater the degree of specificity the easier it would be to identify and assess the strength of the article 10 interests in any balance. Clearly, the more information a court had when balancing rights, the easier it was to undertake an intensive scrutiny on each side to conduct the ultimate balancing test. The President was not suggesting that before relying on article 10 a person was required to provide copy to the court or to get pre-approval for publication. The point travelled no further than that if a person came to court and spoke in general terms of article 10 rights when there were powerful qualified rights on the other side of the balance, the article 10 rights might not weigh very heavily. However, on the facts of the present cases, the court was unable to agree with the President's view that there was a lack of specificity in what the parents of Zainab and Isaiah wished to say. Conducting afresh the applicable balancing exercise and having regard to the other relevant factors including evidence supplied to the court, the parents’ right to free speech decisively prevailed. The President referred to public safety and protection of health in the context of that aspect of the balancing exercise he was invited to undertake. No Strasbourg authority was cited in argument to support the proposition that in Convention terms a right to freedom of expression could be curtailed because of the sort of systemic concerns identified in the evidence and submissions before the President and the present court. That was not really a matter of public safety in the sense described in article 10.2. That term was linked in the article and in the case law of the Strasbourg Court with interferences justified on grounds of national security, territorial integrity and the prevention of disorder and crime. The core concerns advanced before the President were that naming health care professionals might undermine morale, make it more difficult to recruit into the relevant speciality and increase pressure on staff and hospitals. The court was aware of no Strasbourg case which had come close to allowing concerns about morale, recruitment or general well-being of health staff to provide a justification for curtailing the right to free expression about individual experiences whilst being cared for, or on matters of general public interest. It would be a strong thing for public debate to be curtailed in these circumstances and, in line with established domestic authority, the domestic courts should not run ahead of Strasbourg in finding a principle in the Convention which had not emerged in Strasbourg. Even if those matters fell to considered in the balance, they were not capable of justifying interference with the article 10 rights of the parents. There would be different considerations affecting protecting the long-term anonymity of family members if their identities were not in the public domain and they sought protection. Accordingly, the reporting restriction orders under consideration would be discharged. The order discharging the RROs would be stayed pending resolution of any application for permission to appeal, or further order (paras 103, 104–106, 115, 125–126, 128, 131).

Decision of Sir Andrew McFarlane P [2021] EWHC 1699 (Fam); [2022] Fam 180 reversed.

Bruno Quintavalle (instructed by Andrew Storch Solicitors, Reading) for the claimants.

Gavin Millar KC and Fiona Paterson (instructed by Sintons Law, Newcastle upon Tyne and Hill Dickinson Solicitors) for the defendants.

Fenella Morris KC (instructed by Solicitor, Royal College of Nursing) for the first intervener, the Royal College of Nursing.

Jenni Richards KC (instructed by Solicitor, British Medical Association) for the second intervener, the British Medical Association.

Alex Ruck Keene KC (instructed by Bevan Brittan) for the third intervener. the Faculty of Intensive Care Medicine.

Alistair Robertson and Hannah Sladen (of and instructed by DAC Beachcroft) for the fourth and fifth interveners, the Royal College of Paediatrics and Child Health, and the Paediatric Critical Care Society.

<p align="right">Matthew Brotherton, Barrister</p>

Referenced Legislation

Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, arts 8, 10[1]