Judge: Mr Justice Hayden
Citation:  EWCOP 34
This decision of Hayden J follows his judgment in M v Mrs N  EWCOP 76. To recap, Mrs N was profoundly impaired both physically and cognitively in consequence of the progressive degenerative impact of Multiple Sclerosis. Her treatment was being provided through a percutaneous endoscopic gastrostomy (PEG) tube. The court made a declaration that it was in Mrs N’s best interests to withdraw clinically assisted nutrition and hydration.
The court also made a reporting restrictions order (RRO) prohibiting the identification of M and Mrs N in any press report during Mrs N’s lifetime and for seven days after death. The RRO was extended until 14 days after the final judgment in Re V  EWCOP 21 which was handed down on 4 May 2015 (and reported in our May 2016 newsletter).
In reliance on Re V, M subsequently made an application to extend the RRO in this case “until further order of the court”. In support of the application, M argued that there would be significant interference with the family’s Article 8 rights if the court permitted Mrs N to be named. This was a private Jewish family, well-known in the wider community. The family had been distressed by their involvement in the COP proceedings and by the press interest.
In balancing in the competing interests, including M’s deep seated wish to preserve her mother’s anonymity, the court came to “the firm conclusion that the balance here weighs more heavily in favour of freedom of expression.” Hayden J reasoned at paragraph 30:
Judges of this Court are not inured to the day to day realities in these cases. I have no doubt that those closest to M and her family, those who matter to the family the most, will have identified Mrs N from the facts of the case. For those beyond that circle, the name of the individual serves only to make her story more real and the issues it raises more acute. Therein lies the public interest. By contrast the introduction of both Mrs N’s and M’s name into the public domain has relatively limited impact on M’s privacy or Article 8 rights more generally. Certainly there is no real evidence to that effect.
Hayden J further commented at paragraphs 33 and 34:
Of course, as has now been analysed in a number of cases in the Court of Protection, evaluating P’s best interests will invariably involve the Judge considering the wider canvas of P’s life, often via the conduit of evidence from family members. Inevitably, that involves an inquiry into the private sphere which will usually engage facets of the rights protected by Article 8. It is unlikely, in my view, that many cases will be confined solely to assessing the advantages or disadvantages of a particular course of treatment without considering some of the circumstances of the individual patient. In this case whilst I have undoubtedly considered features of Mrs N’s life, character and personality, the issue of withdrawal of hydration and nutrition from a patient in MCS is plainly the predominant one. Indeed, I think it can properly be characterized as one of the major issues in contemporary life.
The challenge, in the parallel analysis of the competing rights and interests in play, is that the rights in contemplation are of wholly different complexion. The exercise involves the juxtaposition of the intensely personal (grief, loss, privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice). In a jurisdiction where there is a human, and inevitable pull to the protection of the vulnerable, (this is after all the Court of Protection), it is easy to overlook how some of the wider, abstract concepts also protect society more generally and in doing so embrace the vulnerable.
Like case of G  EWCOP 28, noted above, this case demonstrates the intensely fact-specific analysis required when considering the appropriate duration of a RRO. In particular, the court seized upon one feature of this case which had particular resonance. That was that Mrs N had been involved in litigation over 40 years ago concerning her son’s paternity at time when public attitudes were far less liberal and people perhaps quicker to condemn the private lives of others. Those proceedings were heard in open court, to which the press would have full access, and involved discussing the most personal aspects of her private life. These events were seen as defining Mrs N’s “indomitable spirit”.
Whilst Charles J in Re V gave extensive general guidance as to the correct approach to be applied these cases, the application of that guidance to specific facts remains challenging. In contrast to the earlier case of Re V, the court noted that the reporting of this case had almost entirely been confined to the legal and medical issues as this case represented an evolution in the existing case law extending declaratory relief for the first time to those in a minimally conscious state. There had been no evidence of press intrusion having occurred in the last few months. Whilst the body of case law on this important issue continues to gather momentum, it is clear that the principle of open and transparent justice can only be sustained by sensitive and responsible reporting.