England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
Sitting Out of Hours

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd December 2015

Mrs Justice Theis DBE:

Introduction

1. I am giving this short judgment to explain my reasons for granting a time limited extension for a reporting restrictions order (RRO) in this case. The application was made out of hours on 2 December 2015, the telephone hearing concluding just before 10pm last night.
2. This application is made in the context of proceedings in the Court of Protection concerning a woman C. The issue was whether she had capacity to refuse treatment that would extend her life. The treatment in question is renal dialysis. MacDonald J heard the matter on 13 November. At that hearing he heard oral evidence from three psychiatrists and one of C's daughters, G. He announced his decision on that day, with reasons to follow. He concluded C did have capacity to refuse the treatment and dismissed the application by the Hospital Trust.
3. C, sadly, died on 28 November 2015.
4. MacDonald J handed down his judgment on 30 November 2015 (reported in anonymised form on Bailii as Kings College Hospital NHS Foundation Trust v C and V [2015] EWCOP 80).
5. Prior to the substantive hearing before MacDonald J a RRO had been made by Moor J on 9 November 2015. It was in conventional terms and was expressed to last during C's lifetime.
6. The judgment attracted considerable publicity and was widely reported on 2 December 2015.
7. I was notified at about 5.45 pm on 2 December 2015 that an application was likely to be made by Mr Vikram Sachdeva Q.C. on behalf of C's daughter, V, for the RRO to be extended after C's death. I made enquiries through my clerk as to whether notice had been given to the press and, if not, it should be. The message came back that Mr Farmer from the Press Association had been informed and was going to join the hearing. A little later notification was received from Associated Newspapers that they had instructed Mr Adam Wolanski and he was going to join the hearing on behalf of the Daily Mail. I understand no formal notice was give through CopyDirect, as I was informed it only operates during office hours.
8. The evidence in support of the application is set out in two statements from V's solicitor. In the first statement she confirms she was contacted by the BBC to ask whether her client, V, wanted to comment on the case. On contacting V she was informed C had died on Saturday. She states the family had not anticipated the widespread press attention the case could receive. She was informed that the press had been in contact with a number of the family members. C had three daughters, two attended the hearing on 13 November and one of them, G, gave oral evidence. At the hearing the other daughter V was unable to speak to her statement due to what MacDonald J said was 'the emotions generated by the current situation'. C's youngest daughter is 15 years and is described as being vulnerable to the effect of her being identified as the daughter of the woman described in the judgment. Details of her mother's life have been kept from her, in particular some of the details given in the statements to the court by her older sisters. The same vulnerability applies to C's grandson. V's solicitor set out in her statement the large number of email requests about the case from the press they had fielded during the day.
9. In the second statement she set out how her instructions from V developed during the day. As the press interest intensified she was instructed at 3.20 to make the application to extend the RRO due to the increasing level of press interest in the case and the impact this was having on the family.
10. Mr Sachdeva informed me during the hearing that the Hospital Trust supported the application and the Official Solicitor was neutral.
11. The application to extend the RRO was opposed by Mr Wolanski on behalf of Associated Newspapers.

Legal Framework

12. There is no issue between the parties that the court has jurisdiction to extend a RRO in these circumstances. Reliance is placed on The Press Association v Newcastle Upon Tyne Foundation Trust [2014] EWCOP 6 where Peter Jackson J concluded

'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'.

13. Mr Sachdeva has also drawn my attention to what Baker J said in Re M [2012] 1 WLR 287 when considering the balance between the Article 10 and 8 rights the court can consider the following matters:

(1) In considering the Art 8 rights it can include consideration of the Article 8 rights of other family members (Re M para 39) and the court should consider the nature and strength of the evidence of risk of harm (Re M para 40).

(2) 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 that might have the effect of leading, directly or indirectly, to the shortening of the life of an incapacitated adult, as opposed to the identity and personal circumstances of the incapacitated adult (Re M para 41).

(3) The public interest in the practices and procedures of the Court of Protection to be more widely understood (Re M para 42).

(4) The need to be on guard to ensure the naturally protective instincts do not lead the court to underestimate the importance of Article 10 when undertaking the balancing exercise (Re M para 43).

14. In PA v Newcastle (ibid) at para 43 relevant considerations in deciding whether it is necessary and proportionate to continue to uphold after death the privacy that existed in lifetime include (i) medical confidentiality, and (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. This includes the position of the patient's relatives. It is also relevant that the information referred to in the judgment is of particular sensitivity and whether it reflects any discredit on the patient (PA v Newcastle at para 45).

Submissions

15. In support of his application for an extension of the RRO for 7 days to enable there to be an effective inter partes hearing Mr Sachdeva submitted:

(1) The family would not have given evidence in the candid way that they did if they considered there was a risk of them being identified.

(2) The explicit and sensitive evidence considered by MacDonald J to enable him to reach his decision (in particular at paragraphs 8, 12 and 63) reflect discredit on C, as evidenced by the adverse comment set out in the statement from V's solicitor.

(3) C's youngest daughter is 15 years old, she is vulnerable and has been shielded from many of the details about her mother's life. The adverse impact on her of being identified as the daughter of the woman described in the judgment is considerable.

(4) There is no legitimate interest in identifying C or her relatives. The process and procedure by which the court reached its decision together with the underlying rationale is fully set out in the judgment.

(5) The risk of not continuing the order is that it would deter others in similar situations seeking the assistance of the court or being as candid as the family were in this case for fear of identification. That would be contrary to the public interest.

(6) When balancing the competing considerations under Articles 8 and 10 the balance comes down in favour of continuing the RRO.

(7) There is an arguable case that at a substantive hearing the RRO should be continued beyond death and it is right and proper for the RRO to be extended until an effective inter partes hearing can be arranged.

16. Mr Wolanski made the following submissions:

(1) He objects to the way this application has been made, with insufficient notice and not during office hours.

(2) The order being sought is a significant interference with the Article 10 right of freedom of expression, even if only for a further limited time.

(3) The RRO was made by Moor J four days before the hearing before MacDonald J when the family provided statements and gave oral evidence. The terms of the order made it clear it would lapse upon the death of C and that did not deter them giving evidence or providing statements. The question of extending the RRO beyond death was not raised at the hearing on 13 November.

(4) C does not appear to be a retiring figure in the same way that LM was in PA v Newcastle. All the evidence points the other way.

(5) There are only generalised assertions about the impact on the family of the RRO being lifted, in particular regarding C's 15 year old daughter.

(6) The threshold for extending the RRO is not met.

17. Mr Farmer was present during the hearing and confirmed that there was little publicity following the hearing on 13 November when MacDonald J announced his decision. That may have been due to other news stories at that time.

Decision

18. Having considered the submissions, I concluded the RRO should be extended for 7 days to enable an effective inter partes hearing to take place. I reached that decision for the following reasons:

(1) Whilst I share some of the concerns regarding the delay in making the application I am satisfied on the information set out in the statements that there was not undue delay, it was a situation that developed during the course of the day. However, notice should have been given to the press through the CopyDirect service once the decision was made to apply for the order. That was not done for reasons that do not stand up to scrutiny. Save where there are compelling reasons these applications must be on notice, however short that notice is. In the event Mr Farmer and Mr Wolanski were able to attend.

(2) Whilst I have carefully borne in mind the interference with the Article 10 rights, that has to be looked at in the context that full details of the process by which the court reached its decision, the evidence it relied upon and the rationale underlying the decision are already in the public domain.

(3) The submission by Mr Wolanski that the issue of the time period of the RRO was known at the hearing on 13 November, that it did not deter the family giving evidence and was not the subject of further consideration by the court on 13 November needs to be viewed in the very difficult and deeply personal issues being considered by the court at that hearing. It is clear from the judgment the hearing was, understandably, extremely difficult for the family, to such an extent that one of C's daughters felt unable to give oral evidence. The focus of that hearing was the issues surrounding C's capacity and her difficult history. The RRO is only mentioned in passing in the judgment.

(4) The press interest in the case was not anticipated and clearly intensified during the course of 2 December. The impact on the family is set out in the statement from V's solicitor. The position of C's 15 year old daughter is that she has no or limited knowledge of her mother's circumstances and would be at risk of harm, due to her age, if she was identified as being the daughter of C. The same applies to a lesser extent in relation to her older sisters and wider family members.

(5) I have weighed in the balance the explicit nature of the evidence in this case and that much of it reflects discredit on C.

(6) There is no public interest in C or her family being identified.

(7) There is an arguable case that at a substantive hearing the RRO will be continued and in those circumstances having considered the competing considerations the balance in this case falls in favour of continuing the order for 7 days.