Mental Capacity Case

University Hospitals Birmingham NHS Foundation Trust v Thirumalesh & Ors

Peel J

In the case of ST, Roberts J found that the 19 year old in question lacked capacity to decide upon her medical treatment because (we summarise) she could not believe her doctors when they told her that she was dying.   ST did, in fact, die shortly after the judgment.   She can now be given her full name, as Sudiksha Thirumalesh, as can the treating Trust, University Hospitals Birmingham NHS Foundation Trust.  In a judgment delivered on 29 September 2023, (University Hospitals Birmingham NHS Foundation Trust v Thirumalesh & Ors),  Peel J endorsed the agreement of the parties as to the naming of Ms Thirumalesh (who, in light of that agreement had been named, in fact, following the hearing on 22 September), her families and the expert witnesses, and resolved the question of whether, in respect of the identification of the Trust, the hospital(s) attended by Ms Thirumalesh, and clinical / nursing staff, there should be an immediate discharge of the reporting restrictions, or a ‘cooling-off’ period of 8 weeks, as proposed by the Trust. 

This required Peel J to consider the Article 8 and Article 10 ECHR rights in play, and the decision of the Court of Appeal in Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331. 

Peel J noted that: 

36. The Trust points to its own evidence that relations between staff and parents during the care of ST was not always good. The witness statement in support expressly refers to "nurses and clinical staff". The parents made numerous complaints, which staff felt were unjustified. They "harassed" nurses and tried to interfere with care. Many clinical staff and nurses are extremely worried that they will now be named publicly, including in respect of criticism about care. The parents recorded a number of videos on mobile phones of staff working with ST, and staff are concerned that such videos may be released and might lead to adverse public reaction directed towards them. During the proceedings, media reporting, although anonymised, was perceived by staff to be negative, and two examples are attached to the statement. It is extremely difficult for staff to defend themselves against adverse reporting of this sort, and they would not want to comment publicly in any event. The witness statement prepared on behalf the Trust states that the author is "confident" that staff who cared for ST are likely to take time off work due to stress.

At paragraph 41, Peel J made clear that he did not accept that there was “insufficient evidence before me to weigh materially in the balance the Article 8 rights of clinicians and nursing staff. The witness statement to my mind sets out the anxieties clearly.” Nor did he accept, as was suggested by the family, that “each individual member of staff should apply separately to be anonymised by a Transparency Order or, at the very least, put in their own statement justifying being included within the Transparency Order. It is acceptable for a statement to be adduced in evidence which encompasses the views of all those affected. That is what took place here. To require dozens of members of staff to set out their own cases would be impractical” (paragraph 42). 

Importantly, Peel J also took the view that: 

42. […] when considering the evidence put forward on behalf of the Trust, I am entitled to place it in the context of the Court of Appeal's dicta at para 101 of Abbasi, quoted above:

"The Trusts place considerable reliance on the events surrounding the end-of-life proceedings of Charlie Gard and Alfie Evans. They certainly provide clear evidence of the real possibility of conduct impinging on the article 8 rights of staff before, during and immediately after end-of-life proceedings. It was part of the firm foundations for the making of RROs at the time. They do less to inform an assessment of article 8 risks associated with lifting the RROs at a later date."

In my judgment, the fact that improper conduct directed towards clinicians has taken place in other cases can in principle be taken into account in the intense balancing exercise, particularly where, as here, the court is considering transparency issues before, during or immediately after the proceedings. Such previous cases are informative of the potential risks run by hospital staff.

43. In respect of the identification of clinicians, the family allege failings on the part of certain individuals, stating in terms that this amounted to negligence which led to the death of ST. Although the family, I accept, have no intention to take any steps which might lead to harassment of named staff, the harsh reality of modern methods of communications, particularly by social media, is that they will have no control over the narrative. The publicity generated by this case has been heated in some quarters. There is likely to be heightened interest in the coming days as a result of my intention that the restrictions on identifying ST and her family should be immediately lifted. If anonymisation of clinicians is lifted, the consequences are unpredictable, but there is in my judgment a risk that abuse and harassment may follow, particularly as they may be reported by the family as having given ST inadequate care. Were that to come to pass, I would regard it as a very considerable interference with their Article 8 rights. That risk is likely to be at its most acute in the next few weeks and I consider that there should be a "cooling off period" measured in weeks. That would be a proportionate interference with the family's and the media's Article 10 rights, given the potential interference with the clinical/nursing staff Article 8 rights.

44. This hearing is taking place only a matter of days after the tragic death of ST. That is factually different from the circumstances in both the Abbasi and Haastrup cases where, as para 1 of the Court of Appeal judgment says, "These appeals concern the principles to be applied when a court considers an application to vary or discharge a Reporting Restrictions Order ("RRO") made long before in end-of-life proceedings in the High Court" [emphasis added].

45. Where an application is heard long after the conclusion of proceedings, it is easy to see why there may be little justification for continuation of a Transparency Order. Media and public interest may have diminished. There may have been no improper conduct (of any nature, to any person) in the interim which would indicate a continuing concern about improper conduct towards as yet unnamed clinicians or other staff. The raw emotions upon or shortly after the death of a much-loved person may have dissipated.

46. But in this case, at this point in time, so close to the tragic death of ST, the likelihood is that interest in the circumstances leading to her death will be at its highest, and the risk of improper conduct is similarly at its highest. It seems to me that what is needed here is a relatively short elapse of time to allow matters to settle and reduce the risk of inappropriate secondary activity of the sort described by the Court of Appeal. I do not read the Court of Appeal as determining that the strength of the case for lifting such orders long after the end of proceedings would be the same as immediately after the end of the proceedings, and it seems to me that there is a very considerable difference between the circumstances before the Court of Appeal and the circumstances here.

47. It is further submitted on behalf of the family that the potential clinical negligence claims which they are exploring demand an immediate lifting of the Transparency Order in respect of identifying individual doctors. Counsel relies on para 114 of Abbasi in which it was said that:

"Those involved in clinical negligence claims resulting in death would need a factually quite exceptional case to secure anonymity in civil proceedings or at an inquest touching the death".

48. However, in this case clinical negligence proceedings are simply being considered. Unsurprisingly, given that only a few days have passed since death, no claim has been instituted. I understand that the family, sensibly, intend to take time to consider their position. It is accepted that were such proceedings to be instituted before discharge of the order anonymising clinicians (or were formal complaints to regulators or the like to be brought)), it would be appropriate to vary the order permitting the lifting of restrictions for the purpose of such proceedings.

Peel J therefore concluded that he should lave in place the transparency order insofar as it related to the non-identification of clinicians/nursing staff for a limited period of time before automatic discharge, considering 8 weeks to be a “proportionate and appropriate” timescale.  He made clear at paragraph 49 that, “[f]or the avoidance of doubt, this does not prevent the family from discussing or reporting openly their perception of failings by the Trust and its staff, but they are not permitted to identify any treating clinicians/nursing staff as part of any such discussions or reporting” (paragraph 49).  

Peel J declined to require that the order identify each member of staff within these two categories, as was commended in Abbasi.  He noted at paragraph 51 that “[t]he numbers would run into dozens, and there is a risk of not capturing all the relevant names. At the risk of repetition, my approach might have been different if this application was being considered long after the event; by then, it might be easier to identify if any particular individuals or individuals were at greater risk.”  He also provided that any videos or photographs which the family may have taken of clinical and nursing staff should not be published, as they could lead to identification of individual clinicians/nurses.  Again, these would be discharged in 8 weeks, although he noted that there might be separate written agreements in place between the family and the Trust which would in any event govern publication.

As regards, the Trust, Peel J noted at paragraph 53 that “once ST is identified, it will swiftly be known where she lived, and the Trust will be easily identifiable. To retain the provisions of the Transparency Order in respect of the Trust would be futile.”   However, he continued: 

54. […] to identify specific hospitals attended by ST would carry a risk of jigsaw identification of the clinicians. I accept that as there are only four hospitals run by the Trust, there is inevitably a risk of identification even if a specific hospital is not named, but (i) the order will prevent naming of clinicians/nursing staff, and (ii) the fact that a particular person may know of the identity of the Trust does not lead automatically to identification of the particular clinicians who treated a particular patient at a particular time.