Judge: Peter Jackson J
Citation:  EWCOP 6
Summary: This is the follow up to a decision of Peter Jackson J  EWCOP 454 relating to the question of whether it was lawful to withhold blood transfusions from a gravely ill Jehovah’s Witness. For reasons discussed in our previous case note, he decided at an urgent hearing that it was; the woman, then identified solely as LM, died before he handed down his judgment.
The hearing had taken place – in part – by videolink to open court in London where it was attended by a member of the Press Association. LM’s treating NHS Trust had applied for a Reporting Restriction Order (‘RRO’); the RRO was made at the hearing but the final version was not approved and sealed until shortly after LM died.
In his judgment in the substantive hearing, Peter Jackson J noted that “interesting questions” were raised about the court’s jurisdiction to restrict the reporting after a person’s death of information gathered during proceedings that took place during her lifetime” (paragraph 26). He had invited legal submissions upon the question, Peter Jackson J took at that stage the pragmatic step of making “an order that preserves the situation until the time comes when someone seeks to present full argument on the question. I will say no more than that for the present” (paragraph 27). He therefore granted a RRO on materially identical terms (it would appear) to that which he would have granted had LM still been alive.
The Press Association then applied for a variation of the RRO. The PA did not challenge the order in relation to the medical and care staff, but sought the removal of the embargo on naming LM. The PA also wished to approach the two Jehovah’s Witnesses to ask if they would wish to comment about the case. Peter Jackson J noted that, in fact, the order did not contain a ‘doorstepping provision’ preventing such a request being made to the Witnesses, but they had made clear through the Trust that they did not want to be named or approached.
Written submissions were exchanged with the Trust and Peter Jackson J determined the application on the papers.
Peter Jackson J noted that the power to restrict the publication of identifying information may arise in two ways: (i)following an application under the Human Rights Act to secure the protection of Article 8 rights; (ii) In Court of Protection proceedings, by an order under Part 13 of the Court of Protection Rules 2007. Whatever the basis for the application, the court would take a consistent approach.
Where issues arise during the lifetime of the protected person, the existence of the jurisdiction and the basis on which it is exercised are well understood. Decisions must be made for good reason, applying the discipline of the Human Rights Act in balancing rights arising under Articles 8 and 10, as described by Lord Steyn in Re S (A child) (Identification: Restrictions on Publication)  1 AC 593.
“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. For convenience I will call this the ultimate balancing test.”
Peter Jackson J set out the relevant provisions of Part 13 of the COPR, and noted that the accompanying Practice Direction (PD13A) implied (at paragraph 15) that a RRO would not extend beyond the death of the protected party unless the interests of others require it, but that the PD was not addressing the issue now under consideration.
Peter Jackson J considered two previous authorities:
“I accept that the death of the protected person (P) will not automatically render it appropriate to authorise the publication of any relevant Court of Protection judgment in unanonymised form; but it is clearly a relevant consideration. P’s death means that P no longer has any need for the special protection afforded by anonymity. However, as Sir Stephen Brown recognised in Re C (cited above), the court must consider the potential effect on P’s relatives and other family members, on clinicians treating P, and on persons caring for P, if they knew that on P’s death, their anonymity might be lost.” (emphasis added)
As Peter Jackson J noted (at paragraph 22): “[o]n one reading, the emphasised sentence begs the question with which I am faced, namely whether the protected person herself has any claim to anonymity after death.”
It was common ground between the parties that the Court of Protection had the power to make an order preventing the reporting of the deceased’s name in order to uphold the rights of others, such as medical or care staff or family members. Peter Jackson J held in this regard (at paragraph 33) that “[t]his principle was upheld by Sir Stephen Brown in Re C and in my opinion his analysis remains convincing following the implementation of the Human Rights Act, which changed the analytical approach to these cases, rather than transforming the court’s response to them: see Re S at 605G-606A.”
What was in dispute was the existence of any independent right to protection for the deceased person herself. As Peter Jackson J noted at paragraph 34 “[t]his comes into sharp focus in LM’s case, because she had no known family or friends. In consequence, she cannot be kept anonymous for the sake of others, as was, at least in part, the case in Re C.”
That was, though, not the end of the matter. The balance between the competing interests of maintaining the confidentiality of personal information admitted to the Court and the public need to understand and have confidence in the way in which decisions, both generally and in individual cases, have been reached were (he held at paragraph 35) “normally reconciled by the publication of an anonymised judgment, a convention most recently reflected in the Practice Guidance: “Transparency in the Court of Protection”, issued by the President on 16 January 2014” [Nb, guidance which – rather ironically – seems to have disappeared in the transfer across to the new Judiciary website, a matter that we have raised with those responsible; it is in any event available on Bailii].
Peter Jackson J compared the approaches taken where hearings had been held in public (as would usually be the case in applications relating to serious medical treatment) and in private. Whilst he noted that the making of an RRO is a step beyond the issuing of an anonymised judgment, the same principles are in play: “If the court has sought to protect private information in an anonymised judgment, the case for protecting it by a RRO may be a strong one” (paragraph 38). He therefore held that he would:
“ … approach the rights of those whose cases have been heard in private and those whose cases have been heard in public on an equal footing. Once one reaches the balancing exercise, the right to report may weigh particularly heavily in cases heard in public. But that does not mean that the existence of the power to limit reporting should depend upon whether the case is heard in public or in private or that, following the death of the subject of the proceedings, a balancing exercise is to be performed in one case but not in the other.”
Whilst, as he noted, in very many circumstances, legal rights will end with death, the situation that Peter Jackson J was confronted with was different to – say – libel proceedings, because it was “self-evident” that “the information that is said to deserve protection was gathered during the lifetime of the protected person in the course of proceedings that existed in order to protect her welfare. In my judgment there is no good reason to conclude that the person’s death should lead automatically to all protection being lost. On the contrary, there are very good reasons why the court should retain the power to restrict where necessary the information that can be published, particularly where the information may only have come to wider attention as a result of its own proceedings” (paragraph 41).
Peter Jackson J therefore held that
“… where a court has restricted the publication of information during proceedings that were in existence during a person’s lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person’s death, and to balance the factors that arise in the particular case.”
Peter Jackson J agreed with the observation of HHJ Hodge QC in Re Meek (at paragraph 104) that “P’s death means that P no longer has any need for the special protection afforded by anonymity” to the extent that it conveys that, at least in the eyes of the law, a dead person cannot be affected by what is said about them. However:
“ I do not take this to mean that protection required in life is automatically lost upon death, and I therefore disagree with Mr Dodd’s submission that ‘Once an individual is dead the rules must cease to apply in relation to that person, because they are no longer necessary, the dead having no interests or rights which can be protected or affected by the action of any human agency’ There are a number of considerations that may make it necessary and proportionate to continue to uphold after death the privacy that existed in lifetime. Two of these are referred to in Re C: (i) medical confidentiality, where the death of the patient does not entitle the doctor to publish her medical records: on the contrary, the doctor may only do that in prescribed circumstances; (ii) the interests of justice, which require that people should not be deterred from approaching the court out of fear that any privacy will automatically lapse on death. To these considerations, I would add the need, referred to above, to treat the rights of those who are subject to public and private hearings with consistency. The COP Rules must be read conformably with the court’s obligations under the Human Rights Act and any other approach would not do this.
44. Lastly, I do not consider that the fact [relied upon on behalf of the PA] that the automatic anonymity of rape victims [granted by the provisions of Sexual Offences (Amendment) Acts 1976 and 1992] ends on death takes the matter further. That is a specific statutory provision in a different context and it is even possible to envisage a situation where the court, acting independently of statute, could preserve the anonymity of a rape victim after death.”
The balancing exercise in LM’s case
In light of his conclusion that he was obliged as a matter of law to consider whether the RRO should be continued so as to continue to protect LM’s identity, Peter Jackson J went on to conduct the requisite balancing exercise required by Re S. On the specific facts of her case, he concluded that the balance in this case fell in favour of discharging that part of the order that conferred anonymity on LM. He emphasised, however, that “there is a balance to be struck, and in other cases the conclusion might be different” (paragraph 48).
The order was not disturbed insofar as it related to the doctors/carers and the Jehovah’s Witnesses, Peter Jackson J noting in respect of the latter that “the Witnesses acted to assist the court in an emergency and should not be exposed to unwanted publicity as a result” (paragraph 49).
[LM’s name is now – properly – available on the internet. In light of Peter Jackson J’s observation that LM was a private person who would not have wanted her private information to be made public, we have chosen not to give it here].
Comment: This case is of significant interest for two particular reasons. First, it is the first contested case of which we are aware in the question of the survival of confidentiality after death has been considered (the pre-HRA case of Re C was not contested, as Peter Jackson J noted). We would suggest that the conclusion reached was the only correct one, allowing as it does for – and indeed requiring that – a balancing exercise to be carried out on the facts of the individual case.
Second, the case is of interest for the way in which Peter Jackson J sought to downplay the differences between cases heard in public and cases heard in private as regards rights that might arise as to the confidentiality of personal information relating to P. It is undoubtedly correct that, in light of the Transparency Guidance, the information that makes its way into the public domain as to (for instance) the names of the public authorities in question is now – in general – likely to similar in relation to both types of case (the Guidance providing that “public authorities and expert witnesses should be named in the judgment approved for publication, unless there are compelling reasons why they should not be so named (paragraph 20(i)).” However, there is one very significant difference: a hearing that has taken place in public will, by definition, be one members of the media will have been able to attend, whereas they will not be able to attend a hearing that has taken place in private. Members of the media will therefore be able to hear (often contextual) details of the case that do not make their way into the judgment; by contrast (and in the immortal words of Donald Rumsfeld) information that does not appear in an anonymised judgment will be an unknown unknown to the media. The principles that apply in relation to decisions as to anonymisation and the granting of a RRO may therefore be the same, but they take place against a very different backdrop.
In light of this last observation, it will be of particular interest to see whether there is a drive (whether through the mechanism of the newly constituted ad hoc Rules Committee, or otherwise) to pick up on the President’s oft-repeated desire to align practice in the Court of Protection to that in the family courts where, since the reforms introduced in April 2009, is that accredited journalists have a right to attend most family court hearings (including hearings of cases dealing with what in the Court of Protection would be called personal welfare) unless proper grounds for excluding them can be established on narrowly defined grounds.