Judge: Family Division (Lieven J)
Citation:  EWHC 181 (Fam)
This is the judgment made in relation to the application for a reporting restriction order (RRO) in the Midrar Nadiq case, noted in the Wider Context report.
Lieven J had directed that the proceedings (usually heard in private pursuant to rule 27.10 of the Family Procedure Rules 2010) should be heard in open court given the subject matter (namely the withdrawal of ventilation from a baby). By the time of the final hearing:
The only issue between the parties was whether the names of the treating clinicians (who numbered in the hundreds) should be anonymised, or whether they should be made public. The applicant Trust sought an order resisting publication of their names which was opposed by the parents and the Press Association.
The parties’ positions can be summarised as follows:
Lieven J carried out a balancing exercise between on the one hand open justice, transparency of the court process, the public interest in the freedom of the press to report without restriction, and the need for the public to understand what is happening in difficult and sensitive cases, against on the other, the competing interests of the treating professionals and the protection of their private lives, allowing treating professionals doing an important and difficult job to do so without their work being jeopardized, and the public interest in ensuing that appropriately qualified people do not avoid these cases for fear of hostile comment.
Lieven J concluded that on the facts of this case:
On this basis the Judge granted the RRO to protect the identity of the treating staff.
Of particular interest in this judgment is her Ladyship’s express disagreement with the judgment of the (ex) President, Sir James Munby, in A v Ward  EWHC 16 (Fam)as to where the balance lay. She stated as follows:
In my view there is an important distinction between professionals who attend court as experts (or judges and lawyers), and as such have a free choice as to whether they become involved in litigation, and treating clinicians. The latter’s primary job is to treat the patient, not to give evidence. They come to court not out of any choice, but because they have been carrying out the treatment and the court needs to hear their evidence. This means they have not in any sense waived their right to all aspects of their private life remaining private. In my view there is a strong public interest in allowing them to get on with their jobs without being publicly named. I do not agree with the President that such clinicians simply have to accept whatever the internet and social media may choose to throw at them. I note that the President’s comments were made before the well publicised cases of Gard and Evans, and perhaps at a time where the risks from hostile social media comment were somewhat less, or at least perceived to be less. There may well be cases where the factual matrix makes it appropriate not to grant anonymity and each case will obviously turn on its own facts. But in my view the balance in this case falls on the side of granting the order.
Following the extraordinary public scenes arising from the Gard and Evans cases, there has been an acceptance by many on the bench that the impact on front line clinicians who become involved in such cases can be extreme. It is significant that the public interest in protecting such clinicians has been given significant weight in this application. Even if cases before the Court of Protection are not always as emotive to the public, the logic of this case could apply equally in a situation where a particular case fall into a similar category.