W v M & S (Reporting Restriction Orders)

Summary: In this case, Baker J had to consider the power of the Court of Protection to impose reporting restrictions and the factors that it should take in to account when doing so.

M has been in a minimally conscious state for several years. Members of her family, including her mother, W, reached the conclusion that she would not wish to continue living in her current state. They started proceedings in the Court of Protection seeking a declaration that she lacks capacity to make decisions as to her future medical treatment and for the Court's approval of the withdrawal of artificial nutrition and hydration. The final hearing is listed for 18 July 2011.

When the case first came before Baker J in November 2010, he ordered that all further proceedings should be heard in open court but indicated that it was open to any party to apply for an injunction preventing publication of the identity of the parties and other information concerning the proceedings. In April 2011, the applicant sought an Order imposing reporting restrictions which would restrain publication of information likely to lead to the identification of M, family members, and care staff and further restrain the media from contacting or communicating with any person. The scope of the order sought was contested. By the time the application was heard before Baker J, the parties had narrowed the issues considerably and a draft order was agreed save for one point of dispute.

In granting the orders, Baker J gave guidance as to the considerations that apply when the Court of Protection imposes reporting restrictions on the media and in particular, the balancing exercise that must be undertaken between competing Convention Rights:

• The general rule is that Court of Protection proceedings should usually be held in private. When granting an order containing reporting restrictions, careful consideration must always be given to the precise terms to be included in the order which will always be determined by the specific facts of the individual case.
• Orders for the restriction of publication of information must be founded on rights arising under the ECHR. Practice Direction 13A, following the House of Lords authorities, makes it clear that in the Court of Protection neither article 8 nor article 10 has automatic precedence over the other: Re S (A Child) (Identification: Restriction on Publication) [2004] UKHL 47, [2005] 1 AC 593 as emerging from the opinions of the House of Lords in the earlier case of Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.
• A number of further points arise about the balancing of Convention rights in these applications in the Court of Protection.

1 Whilst the rights engaged will normally be confined to articles 8 and 10, there may be cases where article 6 is engaged, where for example it is asserted that the publication of information relating to proceedings, or attempts by the media to contact litigants, would affect the capacity or willingness of a party to participate in the litigation. 2 A decision whether or not to allow publication of information in such cases may well engage the article 8 rights of not only the incapacitated adult but also other members of her family. Under s.6(3) of the Human Rights Act 1998, the Court of Protection is a public authority and must not act in any way that is incompatible with Convention rights. Accordingly, the balancing exercise that has to be undertaken may, in appropriate circumstances, include consideration of the article 8 rights of other family members. 3 When focusing on the article 8 rights of P and any other relevant person, the court should consider the nature and strength of the evidence of the risk of harm. There must, as Peter Jackson J observed in Hillingdon LBC v Neary [2011] EWHC 413 (COP) at paragraph 15(3), be a proper, factual basis for such concerns. 4 Whilst there may be cases in which the Court of Protection allows details and even the name of the adult who is the subject of the proceedings to be reported, the public interest in freedom of expression arising in serious medical cases will usually lie in the general issues arising on an application for an order that might have the effect of leading, directly or indirectly, to the shortening of the life of an incapacitated adult, as opposed to the identity and personal circumstances of the incapacitated adult. 5 When conducting the balancing exercise, the Court must bear in mind that it is in the public interest for the practices and procedures of the Court of Protection to be more widely understood. 6 Judges and practitioners in the Court of Protection - as in the Family Division - must be on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise. 7 It is of course the case that the Court of Protection hearing an application for a reporting restriction order under rule 92 is considering the same human rights as usually arise in the so-called 'super injunction' cases in the Queen's Bench Division, in which celebrities and others seek to restrain publication concerning their private lives. Both jurisdictions are applying the same statute, namely the Human Rights Act, and will continue to do so unless and until Parliament passes a new privacy law. Both jurisdictions involve the balancing exercise, usually of articles 8 and 10. But the conduct of that balancing exercise will invariably be very different in the Court of Protection because of the circumstances of those whom the court is seeking to protect. As Maurice Kay LJ observed in Ntuli v Donald [2010] EWCA 1276 at paragraph 54, "this is an essentially case-sensitive subject". Decisions on the conduct of the balancing exercise between competing Convention rights in celebrity cases are unlikely to be of any relevance to decisions in the Court of Protection or vice versa.

When applying this approach to the facts of this case, Baker J emphasised that the Court has determined that issues in this case are sufficiently important to justify public hearing, and the press must be allowed to report the proceedings as far as possible. Nevertheless, the balance fell manifestly in favour of granting the orders sought by the applicant and the Official Solicitor. The Article 8 rights of both M and her family members are engaged. The terms of the order will ensure that the article 8 rights of family members are properly protected. The freedom of expression enjoyed by the press will be restricted, but the extent of that restriction will not prevent the press from reporting the issues, evidence (including expert evidence) and arguments at the hearing in July.

Guest Comment (Vikram Sachdeva): This impressive judgment from Mr. Justice Baker is important for four reasons.

First, it clarifies the procedure which must be followed in serious medical treatment cases where reporting restrictions orders (and possibly further injunctions, such as non communication orders) are sought. This will happen in virtually every serious medical treatment case, for (per Practice Direction 9E) such cases are, unlike other CoP cases, presumptively heard in public.

Second, it rejected an attempt by The Times to apply a dictum in a case about a well-known sportsman's sexual indiscretions to this sensitive field, which would have given primacy to the media's article 10 rights over the article 8 rights of the protected party and his or her family.

Third, it suggests that the balancing process can take into account both the parties' Article 6 rights, and the Article 8 rights of parties and (if appropriate) of non-parties such as family members.

Fourth, it provides a very useful standard order which can be modified to the facts of individual cases, which is currently lacking in the CoP Rules and Practice Directions.