England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		17 June 2014

Mr Justice Peter Jackson:

1. This application arising from proceedings in the Court of Protection raises questions about the continued confidentiality after a person's death of information gathered during litigation occurring during her lifetime. The first question is whether an order that preserving the person's anonymity (and hence the confidentiality of information about her) can continue to have effect after her death. If such a power exists, the second question is whether it should be exercised in the present case.
2. For the reasons set out below, I consider that the court does have the power to preserve the anonymity of the protected person after death but that in this case the balance falls in favour of lifting that anonymity.

The facts

3. Fuller details can be found in my judgment of 26 February 2014, reported at [2014] EWHC 454 (COP). In brief:

• LM, a 63-year-old Jehovah's Witness with a history of mental illness, was admitted to hospital in a deteriorating condition for which a blood transfusion was indicated. After careful assessment, the doctors considered that she had the mental capacity to refuse blood products in accordance with her beliefs.

• On 18 February, I heard an urgent application made by Mr Barry Speker on behalf of the Newcastle upon Tyne Hospitals NHS Foundation Trust seeking a declaration that it would be lawful for the doctors to withhold a blood transfusion. Having heard from the lead doctor and from two representatives of the Jehovah's Witnesses, I granted the declaration, which was drawn up and sealed that day. I indicated that I would hand down a written judgment a few days later.

• As this was a case involving serious medical treatment, I directed under Court of Protection Rules 2007 r.92(1)(a) that the hearing should take place in public, and Mr Brian Farmer, a journalist from the Press Association, was in attendance.

• During the hearing Mr Speker applied for a reporting restriction order (RRO) preventing the naming of LM, and the medical and care staff, and the two Jehovah's Witnesses. Having canvassed the views of Mr Farmer, I approved an order in those terms under Rule 92(2) and spelt out its terms in open court. I directed that before it was formally drawn up the procedures required for service of the application by Practice Direction 12I to the Family Procedure Rules 2010 should be followed.

• Where necessary, the court can make RROs without full compliance with the notice requirements (see paragraph 19 of the Practice Direction), and in this case, the order took effect on 18 February, the day of the hearing. The press observed the restrictions and on 19 February the story was published with LM being named by initials only.

• In the event it was not until 24 February that the Trust issued and served an application in proper form. I approved the draft RRO on the same day but in order to allow the press to respond postponed the sealing of the order and the handing down of judgment until 26 February.

• In the early hours of the morning of 26 February, LM died. The judgment was handed down later that morning and, having heard brief submissions from Mr Speker and Mr Farmer, I approved the text of the RRO on a holding basis, giving liberty to anyone affected to apply to vary or discharge it.

4. The Press Association v Newcastle Upon Tyne Hospitals Foundation Trust, the national news agency for Great Britain and Ireland, has now made such an application through its Legal Editor, Mr Dodd. He and Mr Speker have exchanged written submissions, it being agreed that a hearing is not necessary.

The order and the application to set it aside

5. The order made on 18 February and sealed on 26 February is in standard form. It prohibits publication of

"3(a) the name and/or address of:

(i) The Respondent LM, whose details appear in Schedule 1 to this Order;

(ii) Any person formerly caring for LM;

(iii) The members of the Jehovah's Witness faith whose details appear in Schedule 2 to this Order.

(b) any picture being or including a picture of any of the above;

(c) any other material that is likely to lead to or is calculated to lead to the identification of any of the above;

IF BUT ONLY IF such publication is likely to lead to the identification of those referred to in paragraph (a) above as being connected to these proceedings."

6. The order was expressed to last until further order. It expressly does not prohibit discussion of the issues raised by this case or reporting of the procedures of the Court of Protection, or the publication of information arising from any other public hearing (such as a Coroner's court), or publication of information already in the public domain.
7. The PA does not challenge the order in relation to the medical and care staff. What it seeks is the removal of the embargo on naming LM. It also wishes to approach the two Jehovah's Witnesses to ask if they would wish to comment about the case. In fact, the order does not contain a 'doorstepping provision' preventing such a request being made to the Witnesses, but they have made clear through the Trust that they do not want to be named or approached.
8. The PA does not take any point about the fact that, while the RRO was made at the hearing, the final version was not approved and sealed until shortly after LM's death.

The legal framework

9. The power to restrict the publication of identifying information may arise in two ways:

(i) Following an application under the Human Rights Act to secure the protection of Article 8 rights.

(ii) In Court of Protection proceedings, by an order under Part 13 of the Court of Protection Rules 2007.

The second route inevitably arises where there are legal proceedings, while an order under the first basis can be free-standing. (Suppose that in a case such as this, a hospital considered that it could withhold treatment without applying to court, but someone wished to protect the patient from publicity.)

10. Whatever the basis for the application, the court will take a consistent approach. Where issues arise during the lifetime of the protected person, the existence of the jurisdiction and the basis on which it is exercised are well understood. Decisions must be made for good reason, applying the discipline of the Human Rights Act in balancing rights arising under Articles 8 and 10, as described by Lord Steyn in Re S (A child) (Identification: Restrictions on Publication) [2005] 1 AC 593.

"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."

11. Part 13 of the Court of Protection Rules provides for private and public hearings and for restrictions on publication. Rules 92 and 93 read:

Court's power to order that a hearing be held in public

92.—(1) The court may make an order—

(a) for a hearing to be held in public;

(b) for a part of a hearing to be held in public; or

(c) excluding any person, or class of persons, from attending a public hearing or a part of it.

(2) Where the court makes an order under paragraph (1), it may in the same order or by a subsequent order—

(a) impose restrictions on the publication of the identity of—

(i) any party;

(ii) P (whether or not a party);

(iii) any witness; or

(iv) any other person;

(b) prohibit the publication of any information that may lead to any such person being identified;

(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or

(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify.

Supplementary provisions relating to public or private hearings

93.—(1) An order under rule 90, 91 or 92 may be made—

(a) only where it appears to the court that there is good reason for making the order;

(b) at any time; and

(c) either on the court's own initiative or on an application made by any person in accordance with Part 10.

(2) A practice direction may make further provision in connection with—

(a) private hearings;

(b) public hearings; or

(c) the publication of information about any proceedings.

12. The contemplated practice direction is COP PD 13A, which is to be found at http://www.judiciary.gov.uk/wp-content/uploads/2014/05/13A-%E2%80%93-Hearings-including-reporting-restrictions.pdf.
13. The Practice Direction sets out the matters of principle and procedure that must be considered when an application is made for a RRO. Attention is drawn to:

s.12(2) of the Human Rights Act 1998, which calls for notice of RRO applications to be given to the press unless there are compelling reasons not to do so.

• s.1 of the Mental Capacity Act 2005, which requires that things done for or on behalf of the protected person are done in her best interests.

• The procedure for notifying the press of an application via the CopyDirect service.

• The non-precedential balancing of Convention rights in accordance with Re S (above).

• s.12(4) of the Human Rights Act, which requires the court to have particular regard to the importance of freedom of expression and to have regard to the extent to which material has or is about to become available to the public, the extent of the public interest in such material being published and the terms of any relevant privacy code (such as those of the Press Complaints Commission).

14. Finally, paragraphs 27 and 29 of the practice direction concern the scope and duration of the order.

Scope of order

Persons protected

27. The aim should be to protect P rather than to confer anonymity on other individuals or organisations. However, the order may include restrictions on identifying or approaching specified family members, carers, doctors or organisations or other persons as the court directs in cases where the absence of such restriction is likely to prejudice their ability to care for P, or where identification of such persons might lead to identification of P and defeat the purpose of the order. In cases where the court receives expert evidence the identity of the experts (as opposed to treating clinicians) is not normally subject to restriction, unless evidence in support is provided for such a restriction.

Duration of order

29. Orders should last for no longer than is necessary to achieve the purpose for which they are made. The order may need to last until P's death. In some cases a later date may be necessary to maintain the anonymity of doctors or carers after the death of a patient.

15. It will be seen that the Practice Direction implies that a RRO will not extend beyond the death of the protected party unless the interests of others require it. However, it is not addressing the issue now under consideration.

Previous authority

16. In Re C (Adult Patient: Restriction of Publicity After Death) [1996] 1 FCR 605, an order under s.11 Contempt of Court Act 1981 had been made alongside an order authorising withdrawal of treatment from a young man in PVS. No time-limit was expressed in the order. Soon after the young man's death, the parties sought confirmation that the order remained effective so that the identity of his family and his doctors and carers could not be published.
17. Sir Stephen Brown P held that the order remained in force. The purpose of restricting publicity was to protect the position of the patient, his relatives, and the hospital staff. After the death of the patient that purpose endured. Publicity would have an adverse effect on medical and other staff and on members of the patient's family. The order restricting publicity would remain in force unless, on a specific application to the court, it was discharged or varied.
18. In justifying his conclusion, Sir Stephen Brown said this:

"I am satisfied, having heard the arguments which have been addressed to me, particularly by Mr Francis QC and by Mr Huw Lloyd, that the purpose of the restriction still endures in this case. I am impressed, in particular, by the basis upon which Mr Huw Lloyd made his submissions. I have already referred to the potential effect on medical and other staff, knowing that on the death of the patient their anonymity would be lost and that that might well have some detrimental effect upon the way in which they might care for the patient. I believe that that consideration also applies to the parents and members of the family of the patient, and to such people in future cases. I am also satisfied that there is a principle of medical confidentiality which is relevant in the context of the facts of this case and similar cases. It is a further matter of public interest that those who may be faced with considering the making of an application of the kind which was made in this case should be untrammelled by the fear of publicity in coming to the very sensitive and fundamental decision which it involves."

19. It will be seen that the factors underpinning the decision were (i) the position of the doctors and carers, (ii) the position of the family, (iii) the issue of medical confidentiality, and (iv) the interests of justice in similar cases.
20. Sir Stephen Brown expressly noted that the application was unopposed by the press and said that the outcome might be different had he been asked to carry out a balancing exercise.
21. The only other decision that touches on the matter in passing is that of HH Judge Hodge QC in Re Meek [2014] EWCOP 1. In that case, the subject of COP proceedings that had taken place in private concerning her property and affairs died between the date of the hearing and publication of the judgment. It had been intended that her anonymity should endure during her lifetime; the issue was whether the judgment should remain anonymised after her death. In deciding that it should not, Judge Hodge QC said this at paragraph 104:

"I accept that the death of the protected person (P) will not automatically render it appropriate to authorise the publication of any relevant Court of Protection judgment in unanonymised form; but it is clearly a relevant consideration. P's death means that P no longer has any need for the special protection afforded by anonymity. However, as Sir Stephen Brown recognised in Re C (cited above), the court must consider the potential effect on P's relatives and other family members, on clinicians treating P, and on persons caring for P, if they knew that on P's death, their anonymity might be lost." (emphasis added)

22. On one reading, the emphasised sentence begs the question with which I am faced, namely whether the protected person herself has any claim to anonymity after death.

Submissions of the Press Association

23. The PA makes submissions on the legal issue as a matter of public interest.

"In essence, we argue that anonymity is no longer either necessary or desirable, given that this unfortunate patient, LM, has died, and cannot be harmed or distressed by any publicity. This, we submit, means that there is no longer any justification for the anonymity order. In addition, LM also had no surviving family, meaning that there are no relatives who might be disturbed or distressed by publicity about the case. We would also seek the court's permission to approach the two Jehovah's Witnesses who appeared in the case to ask if they would wish to comment about it."

24. Referring to the Court of Protection Rules:

"… it is submitted that these rules apply in the case of living people, whose privacy interests and right to private life under Article 8 of the European Convention on Human Rights are thought to need protection. Once an individual is dead the rules must cease to apply in relation to that person, because they are no longer necessary, the dead having no interests or rights which can be protected or affected by the action of any human agency."

25. By way of analogy, Mr Dodd cites the protection given to victims of rape and other sexual offences by the Sexual Offences (Amendment) Acts 1976 and 1992. These allow for anonymity "during that person's lifetime", with no provision for protection to continue after death. He argues that it is therefore unlikely that Parliament intended anonymity arising under the Court of Protection Rules to continue beyond death.
26. As to Re C (above), Mr Dodd argues that:

(i) The application was unopposed and Sir Stephen Brown expressly said that the outcome might be different had he been asked to carry out a balancing exercise.

(ii) That case concerned an order under s.11 of the Contempt of Court Act 1981, which allows a court to prohibit "the publication of that name or matter in connection with the proceedings…" An order under s.11 would not have any effect on a news story about LM's death as a result of her adherence to the Jehovah's Witness faith as long as it did not amount to a report of the proceedings but came in a different form, such as tributes from friends and fellow-worshippers.

(iii) The case predates the Human Rights Act, with its "ultimate balancing test", as described by Lord Steyn in Re S.

27. On the facts, Mr Dodd submits that lifting LM's anonymity would not be an intrusion into her private life but rather an acknowledgement of her moral and physical courage in the face of death. It would give fellow members of her religion the opportunity to acknowledge her qualities as well as her difficulties. He argues that any ultimate balancing test must result in a decision that she may be named, if for no other reason that she has died and is beyond any protection or damage the order was intended to prevent.

Submissions of the Trust

28. The Trust, through Mr Speker, seeks to maintain the anonymity of LM, her former carers and the two Jehovah's Witnesses.
29. The view of the two Jehovah's Witnesses is that LM was a private person and would not want her anonymity to be removed. They themselves came forward to offer support to LM and to the Trust for that reason, and do not want to face publicity, though not of course out of any lack of confidence in their beliefs.
30. Mr Speker relies on the decision in Re C, and its acknowledgement of the importance of medical confidentiality, which so far as the doctors are concerned, continues after the death of a patient: see the GMC Confidentiality Guidance at paragraph 70 (where the duty is referred to in a footnote as "an obvious ethical obligation"). The approach of the court should, he argues, mirror that of the doctors.
31. As to the balancing exercise, the Trust contrasts LM's case with the decision of District Judge Eldergill in Westminster Council Council v Sykes [2014] EWHC B9 (COP), in which confidentiality was lifted in respect of a living person who had been a social campaigner throughout her life. The judge described that as "a relatively unusual case, where the case for being named outweighed that in favour of continuing the usual anonymity" and regarded Ms Sykes's outgoing personality as a critical factor.
32. Here, the Trust submits that it is important to protect the privacy of vulnerable persons during their lifetime and also after their death. LM was a very private woman who was not seeking to influence others. Identifying her would add nothing to the public's awareness or its ability to debate the issues.

Conclusion (1) – Jurisdiction

33. It is not in dispute between the parties that the court has the power to make an order preventing the reporting of the deceased's name in order to uphold the rights of others, such as medical or care staff or family members. This principle was upheld by Sir Stephen Brown in Re C and in my opinion his analysis remains convincing following the implementation of the Human Rights Act, which changed the analytical approach to these cases, rather than transforming the court's response to them: see Re S at 605G-606A.
34. What is in dispute is the existence of any independent right to protection for the deceased person herself. This comes into sharp focus in LM's case, because she had no known family or friends. In consequence, she cannot be kept anonymous for the sake of others, as was, at least in part, the case in Re C.
35. That, however, is not an end to the matter. By the nature of its proceedings, the Court of Protection will often be admitted to a great deal of personal information, often arising at or around the end of a person's life, which the person themselves may not wish to be made public. On the other hand, the public needs to understand and have confidence in the way in which decisions, both generally and in individual cases, have been reached. These competing interests are normally reconciled by the publication of an anonymised judgment, a convention most recently reflected in the Practice Guidance: "Transparency in the Court of Protection", issued by the President on 16 January 2014.
36. Where a case involves serious medical treatment it will normally be heard in public, and in such cases the privacy of the individual will normally be protected. See COP Practice Direction E at paragraph 16:

16. The court will ordinarily make an order pursuant to rule 92 that any hearing shall be held in public, with restrictions to be imposed in relation to publication of information about the proceedings.

37. In cases where the hearing is held in private, it is a matter for the court as to whether its judgment should name the subject of the proceedings, including after the person's death. I agree with the observation of HH Judge Hodge QC in Meek (above) at paragraph 103:

"The fact that rule 93 (1) (b) provides that an order permitting the publication of the full text of a judgment (under rule 91 (2) (b)) may be made "at any time" makes it clear that the Court has the jurisdiction to authorise the reporting of an unanonymised judgment, even after the protected person's death, provided always that it is satisfied that there is good reason for making such an order."

By the same token, the court can of course decide that its judgment should not identify the person concerned.

38. The making of a RRO is a step beyond the issuing of an anonymised judgment, but as I have explained above, the same principles are in play. If the court has sought to protect private information in an anonymised judgment, the case for protecting it by a RRO may be a strong one.
39. I would therefore approach the rights of those whose cases have been heard in private and those whose cases have been heard in public on an equal footing. Once one reaches the balancing exercise, the right to report may weigh particularly heavily in cases heard in public. But that does not mean that the existence of the power to limit reporting should depend upon whether the case is heard in public or in private or that, following the death of the subject of the proceedings, a balancing exercise is to be performed in one case but not in the other.
40. In very many circumstances, legal rights end with death. For example, libel proceedings will abate with the death of the claimant. Nearer to home, Human Rights actions are personal to the victim (who must be a "person" under Article 34) and may not normally be enforced after death by the person's estate: see Clayton and Tomlinson, The Law of Human Rights (2^nd ed.) at 22.19-20.
41. However, these situations are different to the present one. It is self-evident in this case that the information that is said to deserve protection was gathered during the lifetime of the protected person in the course of proceedings that existed in order to protect her welfare. In my judgment there is no good reason to conclude that the person's death should lead automatically to all protection being lost. On the contrary, there are very good reasons why the court should retain the power to restrict where necessary the information that can be published, particularly where the information may only have come to wider attention as a result of its own proceedings.
42. I conclude that where a court has restricted the publication of information during proceedings that were in existence during a person's lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person's death, and to balance the factors that arise in the particular case.
43. I would agree with the statement in Re Meek ("P's death means that P no longer has any need for the special protection afforded by anonymity.") to the extent that it conveys that, at least in the eyes of the law, a dead person cannot be affected by what is said about them. However, I do not take this to mean that protection required in life is automatically lost upon death, and I therefore disagree with Mr Dodd's submission that "Once an individual is dead the rules must cease to apply in relation to that person, because they are no longer necessary, the dead having no interests or rights which can be protected or affected by the action of any human agency." There are a number of considerations that may make it necessary and proportionate to continue to uphold after death the privacy that existed in lifetime. Two of these are referred to in Re C: (i) medical confidentiality, where the death of the patient does not entitle the doctor to publish her medical records: on the contrary, the doctor may only do that in prescribed circumstances; (ii) the interests of justice, which require that people should not be deterred from approaching the court out of fear that any privacy will automatically lapse on death. To these considerations, I would add the need, referred to above, to treat the rights of those who are subject to public and private hearings with consistency. The COP Rules must be read conformably with the court's obligations under the Human Rights Act and any other approach would not do this.
44. Lastly, I do not consider that the fact that the automatic anonymity of rape victims ends on death takes the matter further. That is a specific statutory provision in a different context and it is even possible to envisage a situation where the court, acting independently of statute, could preserve the anonymity of a rape victim after death.

Conclusion (2) – The balancing exercise in LM's case

45. I have reviewed the judgment given in February. It described LM's history of mental health difficulties, her longstanding religious faith and her declining health. None of the information given in the judgment or referred to during the hearing is of particular sensitivity or confidentiality, nor does it reflect any discredit on LM. The physical, mental and spiritual challenges that she faced could confront anyone. Also, her way of life, whether better described as independent or isolated, makes it unlikely that any wider harm will come from linking her name with her story.
46. There is a proper interest in the name of a person who dies being a matter of public record, whether or not there is to be an inquest. The right to privacy is only likely to outweigh this consideration in very special circumstances. Mr Dodd also makes the important point that there is a public interest in the media being able to report LM's unusual and fateful decision in an engaging manner.
47. I take account of the fact that LM was a private person who would not have wanted her private information to be made public. I also have regard to her medical confidentiality. In this instance, that has not been extensively breached. The fact that she suffered from mental illness would have been apparent to those who knew her and little detail is given of her physical illness. Nor can it be said that to reveal her name would deter applications in similar situations when the degree of scrutiny given to this case is considered.
48. All things considered, I find that the balance in this case falls in favour of discharging that part of the order that confers anonymity on LM. But there is a balance to be struck, and in other cases the conclusion might be different.
49. With regard to the doctors/carers and the two Jehovah's Witnesses, the current order will not be disturbed. No application has been made regarding the former, while the Witnesses acted to assist the court in an emergency and should not be exposed to unwanted publicity as a result.
50. In consequence, the order made on 18 February and sealed on 26 February will be varied by deleting Paragraph 3(a)(i), which prevents the naming of LM. The remaining provisions of the order will remain in force.