Judge: Newton J
Citation:  EWCOP 15
This judgment addresses the question of what information can be provided to the press in a public medical treatment case in which an application for a reporting restrictions order (RRO) is sought but has not yet been granted. The RRO application had been made by the applicant Trust but information identifying P had not been included because of objection by P’s family. The Trust, the Official Solicitor and the Press Association agreed that identifying information should have been included and that the press would not therefore have been able lawfully to report P’s name prior to the RRO application being determined. P’s family argued that there was a lacuna in the relevant Rules and Practice Direction which meant that P could be identified by virtue of notification of the RRO being given to the press.
The court held that information identifying P should be provided to the press when applying for an RRO and that this did not lead to any real risk that P might wrongly be identified to the public before that application was determined. The Press Association informed the court that there was a contract in place with subscribers to the service alerting the national news media to applications (the Injunctions Alert Service) such that disclosure of otherwise confidential information was permitted only on the basis that it would not be published. The system was “intended to provide a convenient and safe vehicle for potential applicants to notify the media of their applications, serve the relevant documentation and enable the subscribing members to make a properly informed decision about whether they wished to challenge any particular application.”
Under PD13A, there is no obligation to serve a draft order when notifying the press, and P’s family relied on this as indicating that P’s identity should not be disclosed to the press. The court held that it was nevertheless ‘incumbent on the applicant to indicate clearly in the application and in the submissions the burden of the order being sought. Notice of course should indicate the categories of persons (if there are many, as for example with health professionals) whose identity would be kept confidential under the proposed order, if the applicant wishes to apply for an order restraining the media from communicating with those persons.’ The court further held that P’s identity should be given to the press. First, the wording of the Rules and Practice Direction suggested that withholding information would be exceptional and would not occur without a decision of the court. Secondly, the court (and the family) could trust the media and could be satisfied that the contractual arrangements in place were adequate to prevent erroneous publication. Thirdly, even if there were a rogue journalist or news organisation, making known P’s identity would be likely to amount to either statutory or common law contempt of court. Fourthly, media organisations in receipt of an RRO application and details of P’s identity would be under an equitable duty to keep treat the information as confidential.
This judgment clarifies a matter that can be of concern to families and healthcare providers in medical treatment cases, which are routinely held in public, and where applications for RROs are almost always made. The judgment casts some light on, but does not determine, what the position is as regards statutory and common law contempt of court in private Court of Protection cases where notification of the fact of proceedings and P’s identity is given to a third party, for example a journalist or an MP, or is posted online. The judgment should also be read alongside the provisions in the new iteration of Rule 91 and the accompanying PD (yet to be published, but which will be out by 1 July) as to communication of information about proceedings. The issue of media access is also likely to be considered further by the ad hoc Rules Committee when it reconvenes to undertake tranche 2 of its work