In the conjoined appeals of Abbasi and Haastrup [2025] UKSC 15, the Supreme Court has grappled with the questions of (1) the jurisdiction of the High Court to grant injunctions providing for the anonymity of professionals involved in treating children involved in serious medical treatment cases; and (2) the circumstances under which such injunctions 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.
Lords Reed and Briggs gave the lead judgment (Lords Hodge and Stephens agreeing with them); Lord Sales gave a concurring judgment.
As a terminological point, Lords Reed and Briggs noted at paragraph 51 that, although conventionally the injunctions in questions have been called “reporting restrictions orders,” the injunctions in question:
are wider in scope than reporting restriction orders as ordinarily understood, which restrict the reporting of court proceedings (for example, by prohibiting the publication of the name of a witness). They are also different in that they are made in proceedings that are usually held in private. In other words, unlike reporting restriction orders, they do not necessarily make inroads upon the open justice principle […]. For all these reasons, it appears to us to be confusing and potentially misleading to describe these injunctions as reporting restriction orders.
Lords Reed and Briggs noted at paragraph 7 that resolution of the issues that arose had led the court “into the need to review from first principles the practice of the making and continuation of injunctions of this kind.” Having conducted that review, they ultimately dismissed the appeal, but for rather different reasons to that of the Court of Appeal. Helpfully, they summarised their reasons at paragraph 182 thus:
(1) The High Court has jurisdiction, in proceedings concerned with the withdrawal of life-sustaining treatment of children, to grant injunctions protecting the identities of clinicians and other hospital staff involved in that treatment, where and for so long as that is necessary to protect the interests of those children. That jurisdiction arises under the court’s inherent parens patriae powers, and under its inherent jurisdiction to protect the administration of justice. Such injunctions can be granted against parties who will not themselves act wrongfully, where that is necessary in order to protect the children’s interests or the administration of justice, and they can be granted contra mundum.
(2) The High Court also has jurisdiction to issue such injunctions where that is necessary in order to prevent interference with hospital trusts’ performance of their statutory functions, as explained in Broadmoor.
(3) The High Court also has jurisdiction to issue such injunctions where that is necessary in order to protect the rights of clinicians and other hospital staff, in proceedings brought or continued by those individuals in reliance on their rights. In principle, such proceedings can (in an appropriate case) be brought in a representative capacity.
(4) These grounds of jurisdiction are not mutually exclusive. In particular, the need to protect the interests of the children, to secure the administration of justice, and to prevent interference with the trusts’ performance of their functions are likely to co-exist and to be mutually reinforcing.
(5) Such injunctions are not incompatible with the open justice principle where, as in the Haastrup proceedings, the application is made under the parens patriae jurisdiction and the substantive hearing is held in private. It is also possible to avoid any incompatibility with the open justice principle where the hearing is held in public, as was intended in the Abbasi proceedings.
(6) Applications for such injunctions should be based on the relevant cause of action under domestic law (such as the parens patriae jurisdiction, or the Broadmoor principle, or the rights of the clinicians under the law of tort), rather than simply on section 6(1) of the Human Rights Act and section 37(1) of the Senior Courts Act.
(7) In principle, the powers of the High Court under the latter provisions are wide enough to enable it to issue injunctions to protect the Convention rights of clinicians and other hospital staff in proceedings brought by hospital trusts, if that is the only way in which those rights can receive practical and effective protection. However, those circumstances do not exist where such protection can be afforded under parens patriae powers or under the court’s power to protect the administration of justice, or on the basis explained in Broadmoor, or where it is practical for the clinicians (or a representative) to be joined to the proceedings and to assert their own claim.
(8) Notice of an application for such an injunction should be given to media organisations. Notice of the grant of such an injunction, and of any application to vary or discharge such an injunction, should be given to the clinicians affected.
(9) In deciding whether to grant such injunctions at the outset of such proceedings, where the court is being asked to exercise its parens patriae powers, the interests of the child in question, and the need to secure the administration of justice in the proceedings, are likely to justify making an order in circumstances where there is a significant risk that publicity will result in interferences with the child’s right to confidentiality and privacy, and in damage to the continued care being provided by the hospital. An order is also likely to be justified under the Broadmoor principle, and, where the clinicians (or a representative clinician) are joined, in order to protect the rights of the clinicians.
(10) Such 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.
(11) The individuals whose identities are protected by such injunctions should be identifiable by reference to the court’s order.
(12) Such injunctions, being contra mundum, should include liberty to any person affected by their terms to apply on notice to vary or discharge any part of the order.
(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 hospital 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.
(14) The court should begin its assessment of any application for such an injunction, or for the continuation of such an injunction, by considering the relevant domestic law.
(15) When the court considers whether the grant or continuation of such an injunction is compatible with the Convention rights protected by article 10, or whether its refusal or discharge would be compatible with article 8, it needs to consider (a) whether there is an interference with the relevant right which is prescribed by the law, (b) whether it pursues a legitimate aim, ie an aim which can be justified with reference to one or more of the matters mentioned in article 10(2) (or article 8(2), as the case may be), and (c) whether the interference is necessary in a democratic society.
(16) In answering the last of those questions in relation to article 10, the need for any restriction of freedom of expression must be established convincingly. It must be justified by a pressing social need, and must be proportionate to the legitimate aim pursued. This consideration applies with particular force to preventive restraints on publication, and is reflected in section 12(3) and (4) of the Human Rights Act.
(17) In assessing proportionality in a situation where there are competing rights under articles 8 and 10, the court should consider the criteria established in the case law of the European court, so far as relevant.
(18) The court should also consider how long the duration of any restriction on freedom of expression needs to be, and whether the reasons for the restriction may be affected by changes in circumstances. A permanent restriction would require compelling circumstances.
(19) Weight can be given to the importance of protecting the medical and other staff of public hospitals against unfounded accusations and consequent abuse. However, the court should also bear in mind that the treatment of patients in public hospitals is a matter of legitimate public interest, and that the medical and other staff of public hospitals are public figures for the purposes of the Convention, with the consequence that the limits of acceptable criticism are wider than in the case of private individuals.
Lord Sales gave a concurring judgment, “to emphasise that it is important to remember that in cases of this sort the clinicians have rights as well, which also require respect and protection.” He focused in particular on the initial phase of events when the child is being treated and made a particular point of noting at paragraph 185 that:
cases of this sort can arise very suddenly, and hospital trusts and clinicians will naturally look to the decision in this case for guidance as to how they should proceed. I do not think the trusts in the Abbasi and Haastrup cases can be criticised for taking the action they did in the initial phase, nor for taking it upon themselves to assert the rights of the clinicians in their employment. I think they proceeded in a laudable and appropriate manner.
At paragraph 188, he observed that:
In those cases and more generally it seems strange to say that a claim for an injunction to protect the clinicians’ rights could only be justified indirectly by invoking the child’s best interests. In my view, it would be appropriate for the court to respond directly to the claim actually brought in such cases, as they did in the Abbasi and the Haastrup cases, namely by identifying the rights of the clinicians themselves and granting relief to protect those rights. In all these cases, the rights of the clinicians have legal significance in the same way as do the rights of the children. A court should not disregard legal rights, wherever they exist and are properly invoked. Also, analytically, since in such cases the impact on the best interests of the child is an indirect consequence of the impact of the harassment on the clinicians, the rights of the clinicians are implicated more directly and are, so to speak, in the front line of the rights requiring protection from the courts rather than in some way a subsidiary matter of concern or irrelevant.
Lord Sales expressed the view that, in the initial phase:
194. […] the clinicians are concentrating on caring for the child and cannot be expected to have to worry about taking legal advice and protecting their own rights. If their rights are to count for something in that period – and they should – someone needs to be able to act on their behalf to assert their rights by commencing or participating in legal proceedings.
195. In my view, the hospital trust is the obvious appropriate person who can take on that role and act on behalf of the clinicians to assert their rights. This is what the trusts purported to do in the cases before us. I do not think this court should be shy of saying that they acted appropriately in doing so.
196. […] in the pressurised circumstances of the initial phase, the clinicians do not have a fair opportunity to consider, seek legal advice about and take legal proceedings to protect their rights. Their attention is understandably elsewhere, directed to providing care for the child. They should not be distracted from that. It would be completely unreasonable to expect them to have to worry about their own legal position and about taking legal steps to protect themselves and (as may be the case) their families from harassment, assault and so on. If in this phase their Convention rights are to be practical and effective rather than theoretical and illusory, as is required by the Convention (see Airey v Ireland (1979-1980) 2 EHRR 305, para 24, and “[t]his is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial”), someone has to step in to assert those rights on their behalf in legal proceedings. The law has to be pragmatic about this. A limited departure from the usual position set out at para 193 above [i.e. that the clinicians themselves should be taking their own steps to protect themselves] is required.
However:
202. Outside the initial phase and a suitable cooling-off period which is long enough to allow clinicians time to collect their thoughts and seek legal advice about their position, the justification for departing from the usual position (para 196 above) disappears and the standard procedural requirement that the clinicians, as adults with capacity, should act on their own behalf is applicable.
203. Lord Reed and Lord Briggs do not rule out the possibility that in some circumstances it will be appropriate for the court to grant injunctions to protect the article 8 rights of clinicians in proceedings commenced by a hospital trust: para 98 above. In my opinion, the initial phase in these cases was in this category.
Comment
Having been involved in the case on behalf of the Faculty of Intensive Care Medicine, this comment will be brief. The Supreme Court have laid out a very clear route map for what needs to be done in future cases; as noted at the outset, that route map will apply just as much in serious medical treatment cases involving incapacitated adults. It is also of some importance, I would suggest, that – unlike the Court of Appeal – the Supreme Court accepted that it was, in principle, to take account of the concerns expressed “about the potential impact of attacks on clinicians and other hospital staff on morale and recruitment are irrelevant. Account can be taken of the importance of protecting the medical and other staff of public hospitals against unfounded accusations and consequent abuse.” Even if the limits of acceptable criticism may be wider than in the case of private individuals, that does not give carte blanche to those who wish to criticise clinicians and other hospital staff who may – in many cases – not be in a position to be able to respond.
