England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF MISS G

		27 May 2016

Mr Justice Peter Jackson:

1. This brief judgment concerns an application by the Applicant Health Trust for the variation of a reporting restriction order (RRO) made by Hogg J on 11 March 2016 in proceedings concerning the Respondent, Miss G. That order, which is expressed to last until one month after Miss G's death, prohibits her identification or the identification of members of her family, all of whom are adults, as being concerned in these proceedings. The Trust, supported by the family, now asks for the order to be extended indefinitely. That application is opposed by the Official Solicitor on behalf of Miss G and by the Press Association in submissions lodged on its behalf by Mr Dodd.
2. The proceedings themselves were heard in public and ended on 24 May. Miss G is very sadly in a permanent vegetative state as a result of a heart attack that caused irreversible hypoxic brain injury. She is being kept alive by means of clinically assisted nutrition and hydration (CANH). The diagnosis of PVS rests on unanimous specialist medical evidence from within and outside the Trust and there is agreement between the doctors and the family and the Official Solicitor that it is not in Miss G's interests for CANH to be continued. On 24 May, I made declarations supporting this course of action. My judgment contained few personal or medical details and a brief report by the Press Association was the extent of the publicity.
3. The evidence shows Miss G's family to be exceptionally devoted to her. They have naturally been deeply affected by her misfortune and the prospect of her death. They are private people who are unhappy at the thought of any publicity, particularly at such a difficult time.
4. In those circumstances Mr Patel for the Trust submits that there is no public interest in Miss G or her family being named at any stage and that the order should therefore be extended. He argues, relying on observations made on 25 April by Charles J in V v Associated Newspapers Limited [2016] EWCOP 21, that the normal duration of a RRO should be until further order.
5. In response, Mr Sachdeva QC for the Official Solicitor submits that satellite litigation on an issue of this kind is to be avoided, that the judgment did not reveal any personal information about Miss G or her family and that there is no persuasive evidence to justify an extension of the RRO after death.
6. Mr Dodd states that the Press Association has no desire to interfere with the peace and privacy of Miss G and her family. It intervenes out of concern that the application represents an attempt to persuade the court to derogate from the principle of open justice and extend the right to respect for private and family life beyond reasonable limits.
7. It is entirely appropriate for the court to review a RRO at a final hearing. Having done so, I conclude that the order made by Hogg J in this case was the proper one, and that there is no reason to vary it. My reasons, shortly stated, are these.
8. It is established law that in a proper case a RRO can continue after death to protect the rights of survivors (the issue of whether the deceased's rights survive death is a different matter and does not arise in this case). It is also established by the decision of the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 that the competing values of privacy and freedom of speech must be closely scrutinised in the individual case and that neither is by its nature privileged over the other. These principles were affirmed and applied by Charles J in Re V, where he also warned against transporting comments from one case into another.
9. The names of those who are born and those who die are rightly a matter of public record. The fact that someone has died is always a matter of proper public interest and the ability to record it is a normal incident of society. It is probable that in this case and others like it there will be a coroner's inquest, held in public. These features will normally be present in cases involving the withdrawal of treatment and in such cases those seeking reporting restrictions, particularly open-ended ones, will in practice have to show that privacy considerations outweigh them. I cannot therefore agree with the Trust's submission that there is no legitimate public interest in Miss G's identity being known.
10. There will be cases, of which Re V was one, in which the balance falls in favour of an indefinite RRO because the detrimental impact of naming outweighs the public interest identified above. But here, distressing though the circumstances undoubtedly are, there is no evidence that the identification of Miss G would harm family members or be a significant infringement of their privacy. It is in fact unlikely that there will be any significant reporting, still less intrusive reporting, but the fact that an RRO may not make much of a difference cannot strengthen the case for restrictions.
11. The present application would, I think, have been unlikely to have been made had it not been for the decision in Re V. Mr Patel particularly relies upon observations made by Charles J towards the end of a passage beginning at paragraph 144. In that passage, he rejected a request by the media to give guidance to the effect that the default position should be that a RRO ends on death, absent exceptional circumstances. However, at paragraphs 151 and 152, he described a RRO that lasts until further order as being the normal duration of order, based on an analysis of the Rules and Practice Directions, and on considerations of practicality, given the respective positions of families and the media.
12. For my own part, I respectfully agree that the considerations mentioned must be taken into account in deciding upon the appropriate duration of a RRO in cases where the making of the RRO itself is found to be necessary and proportionate. However, given the emphasis throughout Re V upon the case-specific nature of the analysis, I doubt whether the cited passage is intended to stand as guidance in the manner contended for by Mr Patel. Where an RRO is made in a case where death is foreseeable, the court will consider whether the appropriate duration is to be until death, until a fixed date after death or until further order. The initial decision at an earlier stage in the proceedings may need to be revised at their conclusion, when further information and other considerations may be apparent. In the present case, that process has revealed the duration of the existing order to be appropriate.
13. There will be one minor adjustment to the order, by adding the names of two family members to the list contained in the Schedule. The names were omitted from the order by mistake and there is no objection to them now being included. The amendment can accordingly take place under the slip rule.
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