PH and RH v Brighton and Hove City Council & Oths

Summary

On 23 November 2021, Senior Judge Hilder gave judgment on an application made by the BBC and Sky to disapply the reporting restrictions in proceedings relating to Tony Hickmott – a 44 -year-old man with learning disabilities and autism who has been detained for over 20 years in hospital. The application was supported by Mr Hickmott's parents but opposed by the provider and the Official Solicitor as his litigation friend.

The standard approach in Court of Protection proceedings is that hearings are in public subject to a Transparency Order in order to reconcile the personal nature of information disclosed in such proceedings with the public's need to understand and have confident in the Court's decision-making process.   This approach had been adopted in Mr Hickmott's case.

The anonymity provisions can, however, be relaxed by applying the balancing test between Articles 8 and 10 of the European Convention on Human Rights, as laid out by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 at para 17:

First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each."

Mr Hickmott's situation had already been widely reported in national and online media. Thus, the BBC and Sky argued that the substance of the proceedings was already very much in the public domain – linking him to these proceedings is "merely the final piece of the story" (para 15). Further, they argued, given the information is already in the public domain, the Transparency Order effectively prevented any reporting of his case because of the risk of jigsaw identification. They argued that interference with the applicants' Article 10 rights was therefore disproportionate and not what the Transparency Order was intended to achieve.

The applicants also argued that the facts of the case cried out for scrutiny through responsible reporting.  They stressed that he had been detained for almost two decades, and that public and decision-making bodies needed to know that the matter required the involvement of the Court of Protection for informed scrutiny and for lessons to be learned.

Their argument was supported by Mr Hickmott's parents. They emphasised that, given the duties to arrange aftercare, the conduct of the Local Authority and the Clinical Commissioning Group was of considerable public interest, particularly in the context of the 'Transforming Care' agenda. They also submitted that his wishes and feelings would be to go home; and therefore he would want "every effort to be made to shine a light on his situation" (para 21).

The provider, CareTech, submitted, in opposing the application, that if the provisions were disapplied, his privacy would be undermined. The provider contended that the impact on hospital staff and service as a whole would be significant, as well as on Mr Hickmott's presentation and relationships between the provider and his parents. The provider's evidence included an account of Mr Hickmott exhibiting an increase in behavioural disturbance, and the provider submitted that he would pick up the tensions surrounding the publicity.

The Official Solicitor acknowledged: (i) the over-reliance on hospital settings for adults with learning disabilities and (ii) that there is "much in a name" – stories are more attractive to readers when they concern an identifiable individual. She, however, opposed the application on Mr Hickmott's behalf. She argued that the Transparency Order correctly balances the competing interests; and there was nothing to suggest that Mr Hickmott wished to give up anonymity or that the publicity would benefit him.

Senior Judge Hilder allowed the application.  She considered that the circumstances of the case "unquestionably fall into the domain of proper public interest"; and she had "no doubt" that it was an issue in relation to which there should be open debate on an informed basis (para 29(i)). She gave significant weight to the fact that, given there is already a great deal of information about Mr Hickmott in the public domain, the reporting restrictions effectively prohibit any reporting of his case, because of the risk of jigsaw identification. She was also satisfied that the applicants intended to report the case responsibly.

Balanced against that, Senior Judge Hilder was particularly concerned about the risk that granting the application might destabilise Mr Hickmott's current care arrangements and make his future care more difficult to arrange (para 30(ii)).  Ultimately, however, she was not satisfied that the risk was realistic – in particular, she was not satisfied that incidents of challenging behaviour in the past were causally linked to incidents of challenging behaviour.

Comment

This judgment shows that the balancing exercise in relation to Article 8 and 10 ECHR rights in the context of reporting restrictions is ultimately very case specific. Indeed, the fact that Mr Hickmott's circumstances, including his name, his photograph, the location of his institution, were already very much in the public domain weighed heavily in the balance in favour of acceding to the application. The lifting of the restrictions would not therefore lead to a significant further intrusion into Mr Hickmott's privacy rights, but to leave the restrictions in place would leave a "black hole of information" in relation to the Court of Protection proceedings in his case. Furthermore, the case can be contrasted with, for example, Sir Andrew McFarlane's judgment in Abbasi & Anr v Newcastle-upon-Tyne Hospitals NHS Foundation Trust [2021] EWHC 1699 (Fam) in which he refused the parents' application to discharge the reporting restrictions order, following the death of their children. Their application was concerned, in particular, with the prohibition on identifying the treating clinicians and staff. It was thus a far cry from Hickmott, where the focus was on Mr Hickmott, his circumstances, and the public decision-making bodies, rather than targeting individuals involved in someone's care and treatment.