Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust; Haastrup v King’s College Hospital NHS Foundation Trust [2025] UKSC 15
Six members of 39 Essex Chambers appear in landmark appeal - Newcastle Upon Tyne Hospitals NHS Foundation Trust and Anr v Abbasi and Anr [2025] UKSC 15.
How should a bereaved parent’s freedom of speech be balanced against doctor’s or nurse’s right to privacy? The Supreme Court has grappled with this emotive issue in a lengthy judgment handed down today in the “Abbasi appeal.” (see the Press Summary: here and the Full Judgment: here).
The appellants were two NHS Trusts; Newcastle upon Tyne Hospitals NHS Foundation Trust and King’s College Hospital NHS Foundation Trust, who had brought separate, “best interests” proceedings in the High Court regarding two paediatric patients; Zainab Abbasi and Isaiah Haastrup; the respondents’ children.
In both cases, the treating clinicians and parents had disagreed over whether the children should continue receiving life-sustaining treatment. Tragically, both children died; Zainab before the final hearing in her case, in 2019 and Isaiah, in 2018, after his treatment was withdrawn, following the conclusion of proceedings. (See King’s College Hospital NHS Foundation Trust v Haastrup [2018] EWHC 127 (Fam) and Re H (A Child) [2018] EWCA 287 (Civ).
Contra mundum injunctions (injunctions against the world, also known, confusingly in “best interests” proceedings as “reporting restrictions orders”) had been made at the outset of the proceedings, prohibiting, the identification of the treating clinicians. Neither injunction had been discharged, when the proceedings ended.
In 2020, the parents applied to have the injunctions discharged. They claimed that there was a strong public interest in allowing them to publish their stories; so that poor clinical practice could be brought to light. It would be impossible to do so without naming individual clinicians. The Trusts resisted the applications; arguing that the “uncontrolled furore” which had followed cases such as Charlie Gard and Alfie Evans, made the continued anonymity of their clinical staff vital, not only to the protection of individual clinicians’ safety, but also the continuation of paediatric intensive care services; both locally and nationally.
In June 2021, the President of the Family Division Sir Andrew McFarlane dismissed the parents’ applications [2021] EWHC 1699 (Fam). He held that the court had a duty to act in accordance with Convention rights under s6(1) Human Rights Act 1998; requiring it to balance the article 10 (freedom of expression) of the parents and article 8 (right to a private life) rights of the clinicians. That balance came down firmly in favour of the clinicians’ article 8 rights “in particular because of the body of evidence before the court that the risk of abuse and harassment of treating clinicians in cases of this kind was likely to cause damage to their mental health and wellbeing, to their morale and to their commitment to continuing with this type of work, to the detriment of the public interest;…[and] to the ability of the Trusts to carry out their vital work in the intensive care of gravely ill children.”
The British Medical Association, Royal College of Nursing, Faculty of Intensive Care Medicine and Royal College of Paediatrics and Child Health and Paediatric Critical Care Society all intervened; in the parents’ ensuing appeal to the Court of Appeal. They supported the Trusts’ opposition; each of them filing detailed evidence and submissions about the potential impact upon clinicians and clinical services generally, if the injunctions were lifted.
In March 2023, the Court of Appeal allowed the parents’ appeal; holding that the “granting [of] indefinite anonymity to those involved in end-of-life proceedings…is controversial and intensely political and suitable for Parliament rather than the courts.” (See [2023] EWCA Civ 331).
The Trusts obtained a stay of the order discharging the injunctions and permission to appeal to the Supreme Court. Again, the British Medical Association, Royal College of Nursing, Faculty of Intensive Care Medicine and Royal College of Paediatrics and Child Health and Paediatric Critical Care Society, all intervened. They supported the Trusts’ arguments and provided the court with an invaluable backdrop to the realities of clinical practice and the possible consequences of the injunctions being discharged.
In April 2024, the appeal was heard over two days by the Supreme Court’s President, Lord Reed, the Vice President, Lord Hodge, Lord Briggs, Lord Stephens and Lord Sales. At the conclusion of the oral submissions, the President acknowledged the potentially wide implications of the appeal and its complexities.
A year later and in a comprehensive judgment, which has provided a degree of guidance in this often fraught area, the appeals were dismissed.
Handing down the lead judgment, Lords Reed and Briggs, held that injunctions “should be of limited duration. A reasonable duration would be until the end of the proceedings and, in the event that they terminate with the child’s death or the grant of the declaration sought, for a subsequent cooling-off period. The length of that period will reflect the court’s assessment of the continued risk of interference with the trust’s performance of its statutory functions, and in particular with its continuing treatment of other patients, and the time reasonably needed for clinicians to take advice about their personal rights, but is likely to be measured in weeks rather than months or years [182(10)]”.
However, the door has not been closed entirely on clinicians’ anonymity being preserved beyond the end of proceedings or a child’s death. The court continued,
[182(13)] In the event that a fresh injunction (or the continuation of the existing injunction) is sought after the cooling-off period in order to protect the rights of clinicians or other hospitals staff, the application should be made by those individuals (or one or more representatives of them), relying on the relevant cause or causes of action. It should be supported by specific evidence.
How the Supreme Court’s judgment will be applied at first instance and whether, ultimately Parliament will intervene, remains to be seen but in the meantime, perhaps some comfort can be drawn from Lord Sales’ observations in a short judgment of his own that “clinicians have rights as well, which also require respect and protection” and that in “ taking it upon themselves to assert the rights of the clinicians in their employment, [the Trusts had] proceeded in a laudable and appropriate manner.”
Fiona Paterson KC (led by Gavin Millar KC of Matrix) represented the appellant, Trusts, instructed by Kathryn Riddell of Sintons and Kiran Bhogal of Hill Dickinson.
Jenni Richards KC represented the British Medical Association, instructed by TLT LLP.
Fenella Morris KC represented the Royal College of Nursing, instructed by Bates Wells.
Alex Ruck Keene KC (Hons) represented the Faculty of Intensive Care Medicine, instructed by Bevan Brittan.
Nicola Greaney KC and Ian Brownhill represented the Royal College of Paediatrics and Paediatric Critical Care Society, instructed by DAC Beachcroft LLP.
Vikram Sachdeva KC, Jack Anderson and Rachel Sullivan represented PA Media, instructed by the Legal Department PA Media, before the President of the Family Division.
