In the conjoined appeals of Abbasi and Haastrup  EWCA Civ 331, the Court of Appeal has grappled with the questions of (1) the jurisdiction of the High Court to grant reporting restriction orders (‘RROs’) providing for the anonymity of professionals involved in treating children involved in serious medical treatment cases; and (2) the circumstances under which such RROs should continue after the death of the child. Whilst the decisions under challenge in the two cases related to proceedings relating to children, the same broad principles apply in relation to proceedings before the Court of Protection in respect of adults unable to make their own decisions about medical treatment.
As the Lord Chief Justice, Lord Burnett, giving the judgment of Court of Appeal, identified in the opening of the judgment:
1. [RROs] often protect the identities of all those involved in the care of a patient in respect of whom an application to withdraw treatment is made. That is usually to protect the privacy of the patient, of the patient’s immediate family and of those concerned in the treatment of the patient as well as to safeguard the integrity of the proceedings. Such proceedings are apt to generate a great deal of passionate debate which spills over into harassment of those involved in the proceedings, picketing of hospitals and interference with the working of the hospitals. There are too many who involve themselves in these kinds of debate who lack all sense of proportion and display intolerance of anyone who disagrees with them. Some are not willing to admit that there may be two legitimate points of view. Nonetheless, the circumstances in which it is lawful or ethical to withdraw treatment is the subject of legitimate debate.
2. The context of the appeals is the modern practice in the Family Division of the High Court of granting indefinite anonymity orders to a wide range of medical (and non-medical) carers in cases of this kind. On 23 June 2021 Sir Andrew McFarlane P (“the President”) dismissed separate applications by the parents of two children to discharge the RROs made in in each case:  EWHC 1699 (Fam).
In Lord Burnett’s summary of the President’s judgment:
37. The President observed that the parents’ desire to “tell their story” engaged their rights under article 8 as well as article 10. He also noted that the subject matter of their intended expression was likely to raise issues of public importance which would be of interest to the press in its role as public watchdog. However, he ultimately found that the parents had provided insufficient detail about the nature of their allegations for him to be able to gauge and therefore attach greater weight to that public interest.
38. On the other side of the balance, the President found that the risk of harassment associated with publicly naming the clinicians was substantial. His concern was not what the parents themselves might say but rather what other, less scrupulous individuals might do with the knowledge of the clinicians’ identities. This consequential risk established a twofold justification for interfering with the parents’ rights. First, it engaged the countervailing article 8 rights of the clinicians, whose personal and professional wellbeing would be jeopardised by the threat of online vilification and possibly even in-person abuse. Secondly, this threat would in turn undermine the morale, recruitment and retention of clinical staff and thereby impair the hospitals’ ability to deliver effective care. That was a broader policy concern which engaged the legitimate aims of public safety and the protection of health under articles 8(2) and 10(2).
39. In the President’s view, the detailed and substantial case for protecting staff anonymity comfortably outweighed the parents’ basic assertion of their right to freedom of expression. The outcome of the balancing exercise was therefore plain to see and did not require an intense focus. As a result, the President ordered the continuation of the RROs.
On appeal, it was argued on behalf of the parents, firstly, that there was no jurisdiction at all for the High Court to grant RROs preventing the naming of individuals who were neither parties nor witnesses (either during the currency of proceedings, or after their end), and secondly, that the balance the President struck between articles 8 and 10 ECHR was wrong and he failed to give sufficient weight to the open justice elements in play in these cases.
The Court of Appeal had little hesitation in rejecting the argument that the High Court lacked the jurisdiction to grant RROs protecting those involved in the treatment of the child in question, even if they were neither named as parties nor witnesses. The key paragraphs are 66-68, in which Lord Burnett identified that:
66. The applications in the end-of-life proceedings to the High Court were brought under the court’s parens patriae jurisdiction. The court enjoyed all the powers available to it under its inherent jurisdiction and by virtue of section 37 of the 1981 Act. Those powers could be exercised to protect the integrity of the proceedings themselves and those involved in, affected by or connected with the proceedings. In using this language, we do not intend to define the limits of the power. The CPR do not expand, still less confine, those powers. It is of no moment that the CPR at the time spoke of parties and witnesses and only later of any person. The High Court has always been able to make orders to protect people who are neither parties nor witnesses. See Brearley v. Higgins & Sons  EWHC 1342 (Ch);  4 WLUK 505, applying Khuja v. Times Newspapers Ltd  UKSC 49;  AC 161. That approach was followed in Tenke Fungurme Mining SA v. Katanga Contracting Services SAS  EWHC 3301 (Comm);  12 WLUK 96 where the identity of leading counsel was withheld. The recent revision to CPR 39.2(4) reflects this.
67. There is, moreover, no need for distinct causes of action to be identified to enable the court to make appropriate orders, including RROs. The decisions in Re S, BBC and Guardian news and Media demonstrate that the Convention rights of those affected by the proceedings must be considered and, seized of the proceedings, the court may make such orders as are just and convenient under the inherent jurisdiction and section 37 of the 1981 Act. In particular, it may make such orders as it considers necessary to protect the integrity of the proceedings themselves and the administration of justice. Mr Millar readily accepted that if a hospital trust were seeking an injunction to prohibit the identification of its staff, unconnected with end-of-life proceedings or other underlying proceedings in which they were involved, it would have to establish a cause of action of some sort.
68. Furthermore, the High Court had jurisdiction to entertain an application to set aside the RROs made earlier, not only by virtue of the explicit terms of the orders but also, as in the BBC case, on the basis of an application from a person with a proper interest founded on a change in circumstances. As in the BBC case, the issue then becomes whether the orders should be maintained not on the grounds on which they were originally made but in the light of present circumstances.
The ECHR balancing exercise
Whilst the Court of Appeal was clear that there had been jurisdiction to make the RROs, it was more troubled both as to their scope (in particular their unlimited duration), and as to the approach that the President had taken to the applications to vary them. In particular, the Court of Appeal considered that he had taken into account matters which did not fall to be weighed in the balance when considering the article 8 Convention rights of the hospital staff, namely the systemic health service impacts referred to in the evidence before him.
Lord Burnett made clear that the ‘true’ Article 8 rights of the staff now engaged were now limited; at paragraph 103 noting that:
Whatever may have been the position at the time of the original proceedings and RROs, on analysis the risk to the article 8 rights of and the NHS staff generally in the Haastrup case, or the four clinicians in the Abbasi case, by their being identified by the parents and then by the press is low. The possibility of serious and improper secondary activity following the public discussion of the parents of these cases is speculative. After this time and in the light of events, in our judgment features that can properly be said to engage article 8 no longer carry great weight in the ultimate balancing test.
114. […] The article 10 rights of the parents are strong. In both cases the parents wish to discuss and publish details of their experiences and concerns in an area of general public controversy. The moral and ethical questions surrounding the treatment of children and adults in positions analogous to Zainab and Isaiah generate intense public debate. For the reasons explained by Lord Rodger in the Guardian case (see  above) in such circumstances article 10 rights are powerful indeed. Moreover, in the Haastrup case there can be no justification for prohibiting Zainab’s parents from talking about the circumstances of Isaiah’s birth, including Mrs Haastrup’s treatment. 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.
Turning to the systemic factors, Lord Burnett made it clear that the Court of Appeal considered that:
117. The effect of the decision in these cases to continue the indefinite injunctions against the world has, in effect, created a generic class of anonymisation which endures after the end of proceedings and which is divorced from the individual circumstances of the cases or the individuals involved.
Such an approach, Lord Burnett considered, was not open to the courts (as opposed to Parliament), representing as it did such a serious inroad into the principle of open justice. He emphasised that:
121. The courts will be astute to protect from harm individuals caught up in litigation when it is appropriate to do so. In appropriate circumstances that protection will include the use of injunctions to mitigate the risk of future harm. The civil and criminal law both provide protection from various aspects of online attack, some preventative and other to provide a remedy for legal wrongs. To that extent nobody is obliged simply to ‘put up with’ abuse. However, the courts cannot shut down legitimate debate save when the rights of those affected by that debate, or put differently the adverse consequences, are of such strength as to outweigh the right to free expression. Experience has shown that end-of-life proceedings can generate a fire storm on social media, sometimes fanned and taken advantage of by organisations and individuals with strongly held beliefs about the morality of withdrawing treatment. The fire storm often overwhelms calm debate. RROs become essential to protect the integrity of the proceedings and those caught up, directly and indirectly, in them. Indefinite orders are a different matter. They require careful scrutiny, clear evidence and an intense evaluation of competing interests.
The proper approach, Lord Burnett considered, was to be found in the approach taken by Lieven J in the Abbasi case:
127. […] of limiting the duration of the anonymity given to Newcastle and placing the onus on the trust to seek an extension. We also commend her approach in focusing on a limited number of individuals who required protection albeit that we recognise that when an order is made urgently such a refined focus may not be possible initially. We also commend the approach in the Re M case where the order came to an end automatically unless an application was made successfully to extend it. The period of 28 days in that case was the considered conclusion of all concerned on the facts in play. Circumstances may call for different periods.
Lord Burnett also made clear (paragraph 128) that “[t]here will be different considerations affecting protecting the long-term anonymity of family members if their identities are not in the public domain and they seek protection.”
In conclusion, therefore, and allowing the appeals, Lord Burnett identified that:
The orders made in these cases provide for the indefinite continuation of injunctions against the world prohibiting publication of the names of a small number of clinicians in the Abbasi case and a wide range of health service staff in the Haastrup case. The intense focus on the specific rights being claimed delivers the clear conclusion that the article 10 rights of the parents in wishing to “tell their story” outweigh such article 8 rights of clinicians and staff as may still be in play, long after the RROs were made in the respective end-of-life proceedings. The wider systemic concerns which affect the operation of the NHS laid before the court by representative bodies cannot justify the creation of a practice, not anchored to the specific circumstances of the case, of granting indefinite anonymity to those involved in end-of-life proceedings. Such a step is one that is controversial and intensely political and suitable for Parliament rather than the courts.
As noted at the outset: whilst the decisions under challenge in the two cases related to proceedings relating to children, the same principles apply in relation to proceedings before the Court of Protection in respect of adults unable to make their own decisions about medical treatment (hence the intervention by the Faculty of Intensive Care Medicine, on whose behalf I acted). As it is possible that the case may go further, I will not comment on the merits of the judgment of the Court of Appeal. However, it is clear on the basis of this judgment that in any case going forward – whether in relation to children or adults with impaired decision-making – that:
(1) as ‘refined’ a focus as possible is required by both the relevant parties and the court upon those individuals most clearly requiring protection;
(2) that the protection may be required to ensure the continued anonymity of the subject of the proceedings / their family; to maintain the integrity of the proceedings; or to secure against a risk of harm to a professional;
(3) that the focus may need to be refined as matters continue to unfold (and, in particular, in light of any relevant social media activity of concern);
(4) any application to continue the RRO after the end of the proceedings on the basis of continuing risk must be based upon clear evidence as to the nature of that risk; and
(5) indefinite RROs (at least in respect of securing the anonymity of professionals, rather than the person or their family) will very much be the exception rather than the norm.