Manchester University NHS Foundation Trust v Namiq (RRO)

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 Guardian and the court had agreed that the baby who was the subject matter of the proceedings, Midrar should be named, along with his family members.
• It was agreed that the hospital should be named.

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:

• The Trust were concerned about being at the centre of a media storm, with all the potential disruption to staff, patients and their families that comes with this. In addition they submitted that if named, staff would be discouraged from expressing honestly and sincerely held views, and potential experts would be dissuaded from becoming involved in these controversial cases.
• The Father's position was that openness is important for public confidence, and that it aids accountability.
• The Press Association argued that the Trust's submissions were insufficient to override the Article 10 EHCR rights at play. It further submitted that finding it traumatic being named in a press report was not a good ground to grant anonymity.

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:

• The public interest in open justice was very largely protected by holding the proceedings in public and the judgment in public.
• Relevant to open justice was the fact that the hospital and the child have been named. There was therefore no question of the public not being informed about what is going on.
• In such circumstances it was difficult to see why either open justice or the public interest is harmed other than by a minimal degree by anonymisation of the treating professionals. Particularly as this was not a case in which any substantiated allegations of wrong doing were being made against the treating professionals.
• Importantly, that while there had been no hostile comment in the press or social media at the time of judgment, her Ladyship noted that these type of cases about very ill young children raised strong views and there was a well-documented history of hostile and distressing comments about treating staff in other cases.

On this basis the Judge granted the RRO to protect the identity of the treating staff.

Comment

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 [2010] 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.