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Re M [2011] EWHC 1197 (COP)

Reporting restrictions in Court of Protection proceedings: general guidance given as to the substantive and procedural issues arising.

M is an adult patient who suffers from brain stem encephalitis.  She was represented through the Official Solicitor in an application brought by family members to seek declarations that she lacks capacity to make decisions as to her medical treatment and that it is not in her best interests for artificial nutrition and hydration to be provided.  An issue arose in the proceedings as to the extent of the reporting restrictions that should be put in place.

The issues in this case were settled largely by consent.  Baker J. proceeded to give some general guidance on the substantive and procedural matters that had arisen.  This guidance can be summarised as follows:

1. The general rule is that hearings in the Court of Protection should usually be held in private: r.90(1), Court of Protection Rules 2007.  However, r.92(1)  provides for the court to make an order for all or part of a hearing to be heard in public or excluding any person or class of persons for attending a public hearing or a part of it.  The Court must be satisfied that there is 'good reason' for making an order under Rule 92: Independent News Media v A [2010] EWCA Civ. 343.

2. The Court may also impose reporting restrictions, to include restrictions on publication of the identify of any party, protected person, or witness including information that may lead to any such person being identified: r.92(2), Court of Protection Rules.  Applications to the Court that relate to patients with serious medical conditions will normally be heard in public but with reporting restrictions in place: Practice Direction 9E, para. 16.

3. Until different guidance is provided, the form of the order should follow the model in the President's Direction and accompanying Practice Note issued by the Official Solicitor and the Deputy Director of Legal Services, CAFCASS, dated 18 March 2005.

4. The legal test for making reporting restriction orders in the Court of Protection involves the balancing of rights under Article 8 (respect for private and family life) and Article 10 (freedom of expression).  Practice Direction 13A makes it clear that neither of these Articles takes precedence over the other.  When conducting this balancing exercise, the court applies the four well-known propositions identified by Lord Steyn in Re S (A Child) (Identification: Restriction on Publication) [2004] UKHL 47 at paragraph 17:

"First, neither article has as such precedence over the other.  Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.  Thirdly, the justifications for interfering with or restricting each right must be taken into account.  Finally, the proportionality test must be applied to each.  For convenience I will call this the ultimate balancing test".

A number of further points arose concerning the balancing of Convention rights in these applications.  Firstly, Baker J. makes the point that these cases may also engage rights under Article 6, where, as here, there is a suggestion that publication of information relating to the proceedings or the media seeking to contact family members may affect the capacity of a party to participate in the proceedings.

The Article 8 rights of family members, in addition to those of the protected party, must also be considered as part of the balancing exercise undertaken.  When considering the Article 8 rights of any individuals, the Court must look at the nature and strength of the evidence of the risk of harm.

The public interest in freedom of expression arising in serious medical cases will usually lie in the general issues in an application for an order that may lead to the shortening of a life, as opposed to the identity and personal circumstances of the protected person.  However, 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 understood.

Finally, Baker J. makes the point that although a case such as this considers the same human rights as the so-called superinjunction cases, the balancing exercise will invariably be different in the Court of Protection because of the circumstances of those whom the Court is seeking to protect.

Baker J. then went on to consider the balancing exercise to be conducted in this case.  He found that the balance manifestly fell in favour of granting the orders sought by the applicant and the Official Solicitor.  The terms of the order that had been agreed would protect the Article 8 rights of the family members but would not prevent the press from reporting on the issues, evidence and arguments at the final hearing in July.

Summary by Sally Gore, barrister, 14 Gray's Inn Square

_____________________________
 

Neutral Citation Number: [2011] EWHC 1197 (COP)

Case No: COP 1182483T
IN THE HIGH COURT OF JUSTICE
COURT OF PROTECTION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/05/2011

Before :

THE HONOURABLE MR JUSTICE BAKER
- - - - - - - - - - - - - - - - - - - - -
Between :

W (By her Litigation Friend, B)
Applicant

- and - 

(1) M, (An Adult Patient, By her Litigation Friend, The Official Solicitor)

(2) S

(3) A NHS PRIMARY CARE TRUST

(4) TIMES NEWSPAPERS LIMITED 
Respondents

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Vikram Sachdeva (instructed by Irwin Mitchell) for the Applicant, W
Caroline Harry Thomas QC (instructed by the Official Solicitor) for M
James Berry (instructed by Beachcroft LLP) for the Primary Care Trust
Jane Phillips (instructed by Times Newspapers Ltd Legal Department) for Times Newspapers Ltd
S was neither present nor represented

Hearing dates: 3rd, 9th and 12th May 2011
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

THE HONOURABLE MR JUSTICE BAKER

This judgment is being handed down in private on 12 May 2011. It consists of 20 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location .
 
MR. JUSTICE BAKER  :
INTRODUCTION AND BACKGROUND
1. In February 2003, M then aged 43 was admitted to hospital suffering from brain stem encephalitis.  Her condition quickly deteriorated and as a result she suffered profound damage and wasting to the brain.  For several years, she has been in what is described as a "minimally conscious state", although there is said to be a possibility that she is in fact at a higher level of functioning than she is at present demonstrating.

2. This tragedy has had a devastating impact not only on M herself but also on the lives of her family, including her mother, W, her sister, B and her partner, S.  Those family members have come to the clear view that M would not wish to continue living in her current state and that it is not in her interests to do so.  Supported by other family members, her mother W therefore started proceedings in the Court of Protection, seeking a declaration that M lacks capacity to make decisions as to her future medical treatment; a declaration that it is not in her best interests for artificial nutrition and hydration to be provided, and an order that those treating her may lawfully discontinue and withhold all life-sustaining treatment and medical support and instead furnish such treatment and nursing care as may be appropriate to ensure that she suffers the least distress and retains the greatest dignity until such time as her life comes to an end. 

3. For various reasons these proceedings have taken a long time to come to court, but a final hearing is now listed before me in July of this year.  M is formally a party to the proceedings and is represented by the Official Solicitor.  Sadly, W herself is now suffering from a degenerative condition and is unable to act independently in these proceedings.  As a result, she is herself being represented by her daughter B as litigation friend.  The other parties to the proceedings are S and the NHS Primary Care Trust responsible for providing treatment for M. 

4. Parliament has provided that proceedings in the Court of Protection are normally held in private.  But the rules permit the court, in appropriate cases, to order that hearings should be conducted in pubic and it is well established that applications for permission to withdraw nutrition and other cases involving issues of life and death are usually held in open court.  But the rules also provide that, when a judge directs that a hearing in the Court of Protection should be held in public, he may impose restrictions on reports and publication of information about the proceedings.

5. When this case first came before me on 8 November 2010, I directed that all further hearings in the matter should be heard in open court.  I further ordered, however, that if any party wished to apply for an injunction preventing publication of the identity of the parties, and other information concerning the proceedings, such application should be filed and served in accordance with the appropriate practice direction no later than fourteen days before the date set for the next hearing when that application could be considered.  The next directions hearing took place on 14 April 2011.  In the event, the notice given to the media, although provided via the Press Association's Copy Direct Service in accordance with the rules, was significantly shorter than I had directed in November.  Mr Sachdeva, counsel for the applicant, concedes that this was an oversight by his clients.  By way of explanation, which he concedes is not an excuse, he points out that the hearing was fixed by the court at short notice because the parties wished to adjourn the final hearing in July but the court did not approve such an adjournment.  The parties therefore had to prepare the hearing at short notice and, I am told, the attention of the applicant's representatives was diverted by a number of other pressing issues, including the need to decide who should act as W's litigation friend and ongoing difficulties with public funding.  In the event, notice was only given to the media a few days before the hearing on 14 April.  The notice indicated the type of order being sought namely a reporting restriction order restraining publication of information likely to lead to the identification of M, family members, and care staff, and an outline of the grounds for seeking the order, but, importantly, the notice given to the media did not indicate the applicant would be seeking an order restraining the media from contacting or communicating with any person. 

6. No lawyer representing the media appeared at the hearing on 14 April, although it was conducted in open court and two journalists were present from the Times and the Press Association, Miss Gibb and Miss Gordon respectively.  At the hearing, the applicant, supported by the Official Solicitor and the Primary Care Trust, invited the court to make an order that not only precluded the publication of information likely to lead to the identification of M, her family and care staff looking after her, but also restrained the media from contacting or communicating with members of M's family and the professional staff responsible for her care.  Such orders are commonly made in the Family Division but, in my experience, they have not hitherto identified by name those individuals to be covered by the non-communication clause.  In this case, however, the Primary Care Trust supplied a list of names of those persons involved in M's care who they wished to be precluded from contact by the media.  Not surprisingly given her condition, a large number of staff are involved in M's care, and the list of names in the schedule to the order, including family members and staff, amounted to sixty-five people.  The order provided, as is customary, that any person or organisation affected by any of the restrictions in the order was at liberty to apply to vary or discharge the order on 24 hours notice to the parties.

7. When the order was served on the media, the inclusion of a provision that prevented the media from contacting sixty-five people caused considerable comment in the press.  Times Newspapers Limited ("TNL") wrote to the applicant's solicitors stating inter alia:

"The Times took the position of not objecting to the application of which it was given notice… as it understood and did not object to the purpose of the order i.e. protection of the identification of the individuals, and was satisfied it had been given notice of the extent of the order sought.  Miss Gibb also took no objection in principle to a "doorstepping" order.  However, the extensive confidential schedule which names individuals who reporters are not even aware exist and who may have expressed no intention of contacting takes the order further than the Times or Miss Gibb were told".

8. The letter proceeded to refer to the public interest in ensuring that the work of the Court of Protection is fully understood and therefore objected to the failure of the parties to give notice of the proposed inclusion of the names of care staff in the schedule. The letter concluded:

"This failure deprived the Times of considering representations as to the appropriateness of such a wide ranging order and is contrary to the principle that the media must be notified clearly of any order which derogates from its right to report." 

9. When I received a copy of this letter, although no application had in fact been made under the liberty to apply clause, I concluded that the Court should review the injunction and I therefore directed that the matter should be restored for a further hearing as soon as possible to consider (a) whether the Court of Protection has the power to restrain the media from communicating with any person; (b) if so, whether it should exercise that power in this case; and (c) any further issues arising about the scope of the reporting restriction order made in this case.

10. The matter came back to court on 3 May 2011.  At the hearing, in addition to the parties to the Court of Protection proceedings, TNL appeared represented by counsel.  In the course of the argument, we considered general issues about the legal and procedural approach to be followed by a court considering an application for a reporting restriction order in the Court of Protection, and specific issues about the detailed terms of the order that were appropriate in this case.  The argument was conducted in an appropriate collaborative and largely non-adversarial fashion and in the course of the day the issues narrowed considerably.  At the end of that day, I adjourned the hearing until the following Monday 9th May to enable the parties to file any further evidence on which they sought to rely in support of their case and to reconsider their respective positions as to the terms of the order.  To save costs, I excused the Primary Care Trust and TNL from attending the adjourned hearing.

11. By the time of the hearing on 9 May, the issues between the parties had narrowed further, but a further two hours of court time were still required to finalise the draft.  The proposed order was then sent by e-mail to the Primary Care Trust and TNL for further consideration.  After further negotiations, a draft order was agreed by the parties (save for one minor issue) and submitted to the court for approval.  I have approved the order and will set out the terms at the conclusion of this judgment.

12. I am very grateful to all counsel in the case, Mr Sachdeva on behalf of the applicant, Mr Berry on behalf of the Primary Care Trust, Miss Caroline Harry-Thomas QC on behalf of the Official Solicitor, and Miss Jane Phillips on behalf of the Times, all of whom worked very hard in the short time allowed them (over the Easter and Royal Wedding weekends) to prepare the evidence and complex legal arguments and subsequently negotiate and agree the terms of the order.

13. In view of the legal argument conducted before me, however, I think it appropriate to set out my conclusions on the substantive and procedural issues raised in the hearing, together with my reasons for making the order.  Insofar as what is set out contains any guidance as to future cases, I should add I have shown the draft of this judgment to the President of the Court of Protection, Sir Nicholas Wall who is of course, also the President of the Family Division, who has approved what I have said below. 

THE LAW
General rule – COP hearings in private
14. The Court of Protection is concerned with the weak and the vulnerable, not the rich and the famous.  Its jurisdiction arises out of the need to make decisions on behalf of those who lack the capacity to make decisions for themselves.  For understandable reasons, Parliament has therefore decided that hearings in the Court should usually be held in private.

15. The Lord Chief Justice explained the rationale for this in Independent News Media v A [2010] EWCA Civ 343, [2010] 1 WLR 2262:

" 17.  The Court of Protection was created by the Mental Capacity Act 2005. The Court has been vested with significant powers to assist those who, for whatever reason, lack the capacity to make decisions themselves. The background to the new legislative structure arose from the need to address the interests of those individuals who did not fall within the ambit of successive Mental Health Acts. The Family Division of the High Court gradually developed structures appropriate to provide the protection necessary to meet those needs. The 2005 Act replaces this jurisprudence by introducing a self contained legislative structure, largely based on the practices of the Family Division where judges dealt with welfare matters. The matters historically dealt with by the Office of the Supreme Court (under the name of the Court of Protection) involved property and financial affairs. The two jurisdictions dealing with both welfare and property and financial affairs are now vested in one court: the Court of Protection.

18. The jurisdiction is regulated exclusively in accordance with the new Act. The result is that the affairs of those who are incapacitated for the purposes of the Act are examined before a judge in court. The affairs of those who are not incapacitated are, of course, decided and handled privately, usually at home, sometimes with, but usually without confidential professional advice. None of these decisions is the business of anyone other than the individual or individuals who are making them. And that, as we emphasise, represents an entirely simple, and we suggest self-evident aspect of personal autonomy. The responsibility of the Court of Protection arises just because the reduced capacity of the individual requires interference with his or her personal autonomy.

19. The new statutory structure starts with the assumption that just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business. Hearings before the Court of Protection should therefore be held in private unless there is good reason why they should not. In other words, the new statutory arrangements mirror and rearticulate one longstanding common law exception to the principle that justice must be done in open court."

16. Thus, rule 90(1) of the Court of Protection Rules 2007 provides that "the general rule is that a hearing should be held in private".

Exceptions to the general rule
17. The regulations do, however, provide for exceptions to this general rule. Rule 92(1) provides that the court may make an order (a) for a hearing to be held in public; (b) for a part of a hearing to be held in public, or (c) excluding any person, or class of persons, from attending a public hearing or a part of it. Paragraph 16 of Practice Direction 9E, which makes further provisions relating to applications to the Court concerning serious medical treatment (a phrase which includes decisions about the withholding of nutrition and hydration from persons in a permanent vegetative or minimally conscious state), provides that "the Court will ordinarily make an order pursuant to rule 92 that any hearing shall be held in public, with restrictions to be imposed in relation to publication of information about the proceedings".

18. In Independent News Media v A (supra) the Court of Appeal held that, before any order is made under rule 92, the Court has first to be satisfied that there is "good reason" for making the order. The provisions of Practice Direction 9E recognise that cases involving serious medical treatment will usually amount to a good reason for conducting the hearing in public, subject to appropriate reporting restrictions.

Power to make reporting restriction orders and other injunctions
19. Rule 92 (2) provides that, where the court makes an order under paragraph (1), it may in the same order or by a subsequent order—

"(a) impose restrictions on the publication of the identity of—

(i) any party;
(ii) P (whether or not a party);
(iii) any witness; or
(iv) any other person;

(b) prohibit the publication of any information that may lead to any such person being identified;
(c) prohibit the further publication of any information relating to the proceedings from such date as the court may specify; or
(d) impose such other restrictions on the publication of information relating to the proceedings as the court may specify."

20. As stated above, paragraph 16 of Practice Direction 9E make clear that, when hearing applications to the Court concerning serious medical treatment in open court, the Court will ordinarily impose reporting restrictions.

21. There is no express reference to injunctions in the Mental Capacity Act 2005 and the only reference in the Court of Protection Rules is in Rule 82(1) which, under the heading "interim remedies" provides that the Court of Protection may grant an interim injunction.  There is, however, no doubt about the power of the Court of Protection to make injunctions. Section 47(1) of the Mental Capacity Act provides that "the court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court" and section 37 of the Senior Courts Act 1981 provides that "the High Court may by order (whether interlocutory or final) grant an injunction… in all cases in which it appears to the court to be just and convenient to do so ".

Power to grant injunctions preventing communication or contact
22. Practice Direction 13A makes provisions about hearings in the Court, including reporting restriction orders. Paragraph 27 of that Practice Direction provides that the aim of such orders should be to protect P, the incapacitated adult, rather than to confer anonymity on other individuals or organisations, but continues:

"However, the order may include restrictions on identifying or approaching specified family members, carers, doctors or organisations or other persons as the court directs in cases where the absence of such restriction is likely to prejudice their ability to care for P, or where identification of such persons might lead to identification of P and defeat the purpose of the order. In cases where the court receives expert evidence the identity of the experts (as opposed to treating clinicians) is not normally subject to restriction, unless evidence in support is provided for such a restriction."

23. In addition to the general power to make injunctions arising by virtue of section 47, the provisions of section 16 and 17 of the Mental Capacity Act give the Court of Protection express jurisdiction to make an order prohibiting a named person from having contact with P, provided the court is satisfied that such an order is required in P's best interests.

The form of order
24. Prior to the implementation of the Mental Capacity Act, applications for orders restricting publication of information concerning incapacitated adults were heard in the Family Division and governed by the President's Direction and accompanying Practice Note issued by the Official Solicitor and Deputy Director of Legal Services CAFCASS dated 18 March 2005, which continue to govern such orders in cases concerning children.  The latter Practice Note included a draft model form of reporting restriction order which has thereafter been used by courts in the Family Division. As stated above, the procedure for such applications in cases concerning incapacitated adults in the new Court of Protection is now set out in Practice Direction 13A. The scheme and provisions of the new Practice Direction largely follow those in the 2005 Direction and Practice Note but it does not include a model form of order.

25. Although orders made following the 2005 model order are often expressed in somewhat cumbersome and complex terms, lawyers, the courts and the media are familiar with the format.  Unless and until different guidance is provided, that model should, with appropriate modifications, be adopted and used for reporting restrictions orders in Court of Protection cases. 

26. Careful consideration must be 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.

Notice of application
27. Applications for reporting restriction orders affect the exercise of the right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), and are therefore governed by s. 12 of the Human Rights Act 1998. As paragraph 10 of Practice Direction 13A explains:

"this means that where an application has been made for an order restricting the exercise of the right to freedom of expression, the order must not be made where the person against whom the application is made is neither present or represented unless the court is satisfied (a) that the applicant has taken all practical steps to notify the respondent, or (b) that there are compelling reasons why the respondent should not be notified."

28. The Practice Direction proceeds to describe the detailed procedure for service on the media using the CopyDirect service administered by the Press Association which has been in use for several years under the 2005 Direction and Practice Note.

29. Paragraph 15 of Practice Direction 13A lists the documents that should ordinarily be served. It is notable that, unlike the 2005 Practice Note, the list does not include a draft of the order being sought. The reason for this omission is unclear, but it is possible that it was felt that it was unhelpful to serve a full draft on the media because, as this case demonstrates, the detailed terms of the order are often changed significantly in the course of the hearing.

30. However, in the absence of any requirement to serve a draft order, it is incumbent on the applicant to indicate clearly in the application notice, and in the submissions in support, an outline of the order being sought. In particular, the notice should indicate the categories of persons whose identity would be kept confidential under the proposed order. If the applicant wishes to apply for an order restraining the media from communicating with certain persons, he must say so in the notice, and should also identify the categories of persons to be covered by the order. Unless this is done, the media organisations served with the application will be unable to assess whether or not to contest the application.

The legal test for making reporting restriction orders in the Court of Protection
31. Practice Direction 13A makes it clear that orders for the restriction of publication of information must be founded on "Convention rights", meaning rights under the ECHR incorporated into English law by the Human Rights Act 1998. The approach to be adopted is set out in paragraphs 24 and 25 of the Practice Direction:

"24. Any application or own-initiative order which invokes Convention rights will involve a balancing of rights under Article 8 (right to respect for private and family life) and Article 10 (freedom of expression). There is no automatic precedence as between these Articles, and both are subject to qualification where (among other considerations) the rights of others are engaged.

25. In the case of an application, section 12(4) of the Human Rights Act 1998 requires the court to have particular regard to the importance of freedom of expression. It must also have regard to the extent to which material has or is about to become available to the public, the extent of the public interest in such material being published and the terms of any relevant privacy code (such as those of the Press Complaints Commission)."

32. When conducting the balancing exercise between articles 8 and 10 of the ECHR, the court applies the four well-known propositions identified by Lord Steyn in paragraph 17 of his judgment in 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:

"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."

33. The House of Lords decisions in the Campbell case and in Re S emphasise that the terms of ECHR and the Human Rights Act should not be read as giving presumptive priority to article 10. In A Local Authority v W,L,W,T and R [2005] EWHC 1564 (Fam), [2006] 1 FLR 1, in which a local authority sought an order in a children's case under the inherent jurisdiction, Sir Mark Potter P. at paragraph 53 summarised the approach  as follows:

"The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither article has precedence over or "trumps" the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out. Having so stated, Lord Steyn strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test…."

34. In the course of the legal argument before me, counsel for TNL suggested that the Court should adopt a different approach, derived from the recent decision of the Court of Appeal in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, and in particular the following passage from the judgment of the Master of the Rolls at paragraph 22:

"Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions."

35. Counsel for TNL submitted that an order restraining the media from communicating with any person was a significant restriction on their rights under article 10 and that, by analogy with the JIH case, such an order in the Court of Protection should only be made where it is shown to be necessary, and then defined in such a way as to make it as minimally restrictive as is consistent with the protection sought to be provided by the restraint.

36. It is, however, important to note the context in which the Master of the Rolls' observation was made in the JIH case, as is made clear in the preceding paragraph of his judgment, namely an application by a claimant for an order restraining publication of details of a case which are normally in the public domain. In the Court of Protection, however, details of the case are not normally in the public domain. Parliament has decided that proceedings should normally be heard in private. Whilst Practice Direction 9E indicates that the Court should ordinarily make an order that any hearing in serious medical cases should be held in public, it adds that such an order will also include restrictions to be imposed in relation to publication of information about the proceedings, and Practice Direction 13A indicates that, when balancing articles 8 and 10 in deciding the terms of those restrictions, "there is no automatic precedence between those articles".

37. It seems to me that TNL's  submission on this point is, in effect, inviting the court to give presumptive priority to article 10, but in my judgment 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.

38. A number of further points arise about the balancing of Convention rights in these applications in the Court of Protection. First, whilst the rights engaged will normally be confined to articles 8 and 10, this case demonstrates that 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.

39. Secondly, 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.

40. Thirdly, 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. In this case, the evidence initially filed by the Applicant and the Official Solicitor was somewhat thin, but statements filed later gave a much clearer picture of how the article 8 rights were said to be under threat.

41. Fourthly, 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 (see, for example, the Neary case just cited) 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.

42. Fifthly, however, 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.  Peter Jackson J expressed this point eloquently in the recent decision in Neary, at paragraph 15(4):

"There is a genuine public interest in the work of this court being understood. Not only is this healthy in itself – the presence of the media in appropriate cases has a bracing effect on all public servants, whether in the field of social services or the law – but it may also help to dispel misunderstandings. It is not in the interests of individual litigants, or of society at large, for a court that is by definition devoted to the protection of the welfare of disadvantaged people to be characterised (including in a report about this case, published as I write this judgment) as 'secretive'. It is part of our natural curiosity to want to know other people's secrets, and using pejorative descriptions of this kind may stimulate interest. The opportunity, in appropriate cases, to follow a process that has welfare, not secrecy, at its heart can only help the media to produce balanced reporting, and not fall back on clichés."

43. Sixthly, 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.

44. Finally, 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 superinjunction 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.

THE BALANCING EXERCISE IN THIS CASE
45. Despite the high quality of care she is receiving from the large team of dedicated professionals at her care home, M's condition remains one of the utmost vulnerability.

46. The order now sought by the applicant and the Official Solicitor is therefore extensive. It would preclude not merely the identification of M but also of any party, any witness (excluding expert witnesses), any current or past treating health care professional or member of the care team, the care home, or indeed any address or location named in the proceedings, save that the location may be stated to be in the north of England.  In addition, it is proposed that the order should include a non-communication or "doorstepping" clause. 

47. Neither the primary care trust nor any other party has sought at this hearing to justify extending the non-communication or doorstepping clause to cover members of staff at the care home.  The parties do, however, ask the court to make an order preventing any communication with M, W, B, or S.  In addition, they seek an order prohibiting a person bound by the order from approaching within twenty metres of M, or within fifty metres of the care home, save by invitation of members of staff at the care home.  The parties also invite the court to make an order prohibiting the taking of any photographs of M, W, B or S. 

48. TNL did not oppose a prohibition on the publication of a photograph of M or W, but, initially, objected to the order including any restriction on the taking of a photograph, on the grounds that such a restriction was a significant further limitation on the media's freedom of expression which was, in the view of TNL, not justified on the evidence.  

49. As already indicated, at the conclusion of the hearing on 3 May, I adjourned the hearing inter alia to allow the parties to file further evidence.  The Official Solicitor duly filed a statement from his deputy, exhibiting attendance notes of conversations with the manager of the care home, which clearly demonstrated that, on the facts of this case, the taking of a photograph would be potentially harmful to M.  M is regularly taken out for trips by members of the care staff.  During these trips, the care team are monitoring her reactions and level of awareness.  The deputy Official Solicitor expressed concern that "the prospect of being photographed, whether covertly or overtly, will be an unhelpful distraction for the staff concerned which may well impact both on the quality of the experience for M and on the reliability of the observations that those staff are intended to undertake with regard to M's responses during such trips." 

50. Having received this further evidence, TNL, not surprisingly, withdrew its objection to the proposed prohibition on the taking of a photograph of M.  In my judgment, this further concession was properly made. 

51. As mentioned above, paragraph 25 of Practice Direction 13A requires the court, when considering the proposed restrictions of article 10, to have regard to any relevant privacy code.  In this case, my attention has been drawn to the newspaper and periodical industry's Code of Practice, and in particular paragraph 3(iii) which provides:

"It is unacceptable to photograph individuals in private places without their consent".  

A note that follows immediately in the code adds:

"Private places are public or private property where there is a reasonable expectation of privacy"

52. In other words, the press recognises in its Code of Practice that a restriction on the taking of photographs without the consent of the subject where there is a reasonable expectation of privacy is a justifiable restriction of article 10. 

53. As stated above, the number of persons covered by the prohibition against communication or "doorstepping" has been significantly reduced since the previous hearing.  The primary care trust and the other parties no longer seek an order preventing communication with members of the care staff.  Accordingly, I have not heard any extensive argument as to whether such an order could be justified.  Clearly, there may be cases in which such an order would be justified, but whether or not such an order is granted once the respective rights under articles 8 and 10 are balanced will inevitably depend on the evidence in each case. 

54. The focus of the argument on 3 May was directed as to whether the injunction against communication should extend to family members other than M.  TNL did not object to the inclusion of W within the scope of this order, given her frailty and illness, but asserted that there was insufficient evidence to justify extending the order to B and S.  Subsequent to the hearing on 3 May, however, further statements were filed by the applicant from B and S. 

55. In her statement, B, who is M's sister and W's daughter, carer, and litigation friend, described how M's illness had "turned her life upside down".  She spoke of the difficulties she and other family members had experienced in deciding whether to bring these proceedings.  She described the added difficulty she faced now caring for W.  She said that she would struggle to cope with the possibility of being contacted by the press, and thought that, if the press did contact her, she might think twice about visiting M and taking her mother along with her. 

56. In his statement, S described how M is still very much a part of his life.  He visits her every week.  He said he was "devastated" by her illness and the condition that left it her in.  He finds these proceedings very stressful and says:

"It is a huge thing for me to be involved in this case"

He adds:

"At times, I feel that, with the extended legal proceedings and now the press interest, the case has become like a circus and everybody has lost sight of what matters, which is M and her best interests.  I do not see what the press wish to achieve by… being allowed to contact me… just the thought of it makes me very anxious and I do not know if I could cope if this were to happen as they would be encroaching on something which is so deep and painful to me."

57. Both B and S say in their statements that, when they found out that the press wished to identify them and lift the order against contacting them, they gave real consideration about whether they would want to continue with the case. 

58. This testimony illustrates how the fear of press intrusion may affect the lives of ordinary people who have not sought to be cast into the public gaze.  Not surprisingly, upon receipt of this further evidence, TNL withdrew its opposition to the names of B and S being included in the injunction against communication.  The newspaper also agreed to the other terms sought by the applicant and the Official Solicitor, including the prohibition on the taking of any photographs of W, B or S.  After further negotiation via email, the parties reached agreement save for one minor issue which they have asked me to resolve. I shall deal with that point briefly at the end of the judgment.

59. Although TNL have now agreed to the terms of the order, it must be remembered that they are only representing one section of the media.  The court must therefore carry out the balancing exercise before determining whether or not the order should be made. 

60. On the one hand, the court considers article 10.  It is axiomatic that the freedom to report proceedings in open court is in the public interest.  The court has determined that the 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.  Furthermore, although the precise scope of the issues to be determined at the hearing in July is yet to be clarified, it seems likely that the court will be asked to make an order that has not been made before in this country, namely to approve the withholding of nutrition from a patient whose consciousness is above that of the vegetative state.  This potentially raises issues of the utmost importance which the media must be fully free to report. 

61. In addition, the court recognises that the reporting of such cases is difficult if the restrictions imposed on the media are too onerous.  The issues raised are invariably given sharper focus if the media are free to report the human stories behind the legal issues. 

62. Furthermore, I endorse the observation of Peter Jackson J in the Neary case that it is particularly important that the public should have confidence in the way in which the Court of Protection is working.  All judges are aware of the unease expressed in some quarters about the so-called "secrecy" of proceedings in the family courts and the Court of Protection.  Where a case warrants an exception to the general rule that the Court of Protection proceedings should be held in private, the court should ensure that reporters are free to give as full a picture as possible of the court proceedings.

63. I turn next to consider the application of article 8 in these proceedings. The evidence manifestly demonstrates that M's right to respect for family and private life would be infringed by any publication that identified her, or any attempt by the media to communicate with or photograph her.  

64. In my judgment, the article 8 rights engaged in this case are not only those of M, but also those of W, B and S.  On the evidence filed in this case, any publication of the identity of W, B and S, or any attempt by the media to communicate with, or take a photograph of, those three individuals would not only infringe their own article 8 rights, but also the article 8 rights of M, since, on the evidence of B and S, it would be likely to reduce the frequency of their visits to the care home.

65. I also take into account the statements by B and S that the risk of press intrusion might lead them to abandon these proceedings altogether.  It is therefore arguable that, if it failed to restrain the press from identifying, communicating with or photographing the family members, the court would be infringing the article 6 rights of B, S and M.   Given the importance of the issues at stake in these proceedings, such an infringement would be extremely serious. 

66. Having focused on the comparative importance of these specific rights being claimed in the case, and the justifications for interfering with and restricting each right, I turn finally to conduct the ultimate balancing exercise.  In my judgment, the balance manifestly falls in this case in favour of granting the orders sought by the applicant and the Official Solicitor.  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, in my judgment, not prevent the press from reporting the issues, evidence (including expert evidence) and arguments at the hearing in July.

67. Before setting out the terms of the order, I must briefly address the small point remaining between TNL and the other parties, specifically the primary care trust. As will be seen, the order includes a provision in standard form preventing the publication of information likely to lead to the identification of, inter alia, M's care home and any person as being a current or past treating healthcare professional or member of M's care team referred to in proceedings in relation to M's care and/or treatment. A list of such persons is included in Schedule 2 to the order. The primary care trust would like to add the words "including those listed in Schedule 2". TNL propose that the words added should be simply "listed in Schedule 2". I am told that the trust proposes the insertion of the word 'including', because the list in Schedule 2 does not include all healthcare professionals who have treated and cared for M in the past, or indeed may start treating M in the future. The trust is concerned that any recipient of this Order may therefore be left with the impression that they could publish the identity or any information that is likely to lead to the identification of such healthcare individuals. TNL objects on the grounds that this formulation leaves the order open-ended.

68. I am not persuaded that the order should include the extra words proposed by the trust. In my view they are unnecessary. If the media were to publish the name of a new member of staff at the care home and describe him as someone engaged in the care of M, that would manifestly be information likely to lead to the identification of the care home and therefore infringe the order. Common sense suggest that it is unlikely that the media will identify the names of past or future care or medical staff.

69. I do, however, think it will be advisable to review the terms of the order I am about to make on the first day of the final hearing on 18th July.

70. I therefore make an order in the following terms which, as stated above, is fully agreed by all parties including TNL:

REPORTING RESTRICTION ORDER AND OTHER INJUNCTIONS
IMPORTANT: PENAL NOTICE
If you disobey this order you may be found guilty of contempt of court and may be sent to prison or be fined or have your assets seized. You should read the order carefully and are advised to consult a solicitor as soon as possible. You have the right to ask the Court to vary or discharge this order.

Explanation
A On 3, 9 and 12 May 2011 the Court considered an application for orders including a reporting restriction order.

B The following parties and/or organisations were represented before the Court:
The Applicant – represented by Counsel, Mr. Vikram Sachdeva
The First Respondent – represented by Leading Counsel, Miss Caroline Harry Thomas QC
The Second Respondent did not appear but was kept informed of all issues by Messrs. Irwin Mitchell, the Applicant's Solicitors
The Third Respondent – represented by Counsel, Mr. James Berry
Times Newspapers Ltd – represented by Counsel, Ms. Jane Phillips
Counsel for the Third Respondent and Times Newspapers Ltd were excused from attendance on 9th May 2011.

C The Court read the following documents:
Two statements of each of B and S, filed on 3 May 2011 and 5 May 2011
Statements of the Deputy Official Solicitor dated 28 April 2011 and 5 May 2011 and a Statement filed on behalf of the Third Respondent on 6 May 2011
The bundles prepared on behalf of the Applicant, First and Third Respondents
The Times Newspapers Limited's letter dated 20 April 2011 and email dated 6 May 2011 sent at 13.04

The Court directed that a copy of the attached Explanatory Note should be made available by the Applicant to any person served with this Order

ORDER
1. Duration
Subject to any different order made in the meantime, this order shall have effect during the lifetime of the First Respondent, whose details are set out in Schedule 1 of this Order.

2. Who is bound
This Order binds all persons (whether acting by themselves or in any other way) and all companies (whether acting by their directors, employees or agents or in any other way) who know that this Order has been made.

3. Identification
The following shall be referred to in these proceedings as set out below:
 
(1) The First Respondent – "M".
(2) The Applicant – "W".
(3) The Applicant's Litigation Friend – "B".
(4) The Second Respondent – "S".
(5) The Third Respondent – "A NHS Primary Care Trust".
(6) A former party, "An NHS Hospital Trust".
(7) The establishment at which M is cared for shall be referred to as "the Care Home".
(8) All witnesses (whether their evidence is given orally or in writing in a witness statement or an attendance note prepared and submitted to the Court by the Official Solicitor) and past and current treating healthcare professionals and care team members (except expert witnesses, who may be identified) shall be referred to by the first letter of their family name.

The names of those persons, parties and establishments listed in paragraphs 3(1) to (7) above are set out in Schedule 1 below.

4. Publishing Restrictions
This order prohibits, pursuant to rule 92(2) of the Court of Protection Rules 2007, the publishing or broadcasting, in any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook, sound or television broadcast or cable or satellite programme service, of any information (including any photograph) that is likely to lead to the identification of:
(1) M;
(2) Any person as being

(a) a party or former party to these proceedings;
(b) a witness in these proceedings (as defined in paragraph 3(8) of this Order), other than an expert witness instructed in the case;
(c) a current or past treating healthcare professional or member of M's care team referred to in proceedings in relation to M's care and/or treatment listed in Schedule 2 to this order;

(3) the Care Home as being the place where M is residing;
(4) any address or location as being an address or location referred to in the proceedings, save that the location may be stated to be the "North of England";

5. Other Restrictions
This order further prohibits any person bound by the order (including by instructing or encouraging or permitting any other person) from:
(1) communicating with M, B, W, or S, whether orally in person, or by telephone, text message, e-mail or any other means (other than by letter addressed to the Official Solicitor in respect of M, alternatively by letter addressed to Irwin Mitchell in respect of the Applicant or B, W or S), unless the Official Solicitor (as regards M) or Irwin Mitchell (as regards B, W or S) expressly invites such communication, or
(2) approaching within 20 metres of M; or
(3) approaching within 50 metres of the Care Home for the purpose of seeking information about M and/or these proceedings; or
(4) taking any photograph of any of M, W, B or S.

6. Schedules
No publication of the text or a summary of this order (except for service of the order under paragraph 8 below) shall include any of the information referred to in Schedules 1 and 2 of this order.

7. What is not restricted by this Order
Nothing in this Order shall prevent any person from:
(1) Publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication.
(2) Seeking or publishing information which is not restricted by paragraph 4 above.
(3) Inquiring whether a person or place falls within paragraph 4 above.
(4) Seeking information relating to M while acting in a manner authorised by statute or by any court in England and Wales.
(5) Seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 3 to this Order below.
(6) Seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
(7) Publishing information which before the service on that person of this order was already in the public domain in England and Wales as a result of publication by another person in any newspaper, magazine, sound or television broadcast or cable or satellite programme service, or on the internet website of a media organisation operating within England and Wales.
(8) Stating that the parties and former party listed in paragraph 3(1) – (6) above live and/or are situated in the North of England.
(9) Approaching within 20 metres of M, or within 50 metres of the Care Home, at the invitation, or with the permission, of a member of staff of the Care Home.

8. Service
Copies of this Order endorsed with a notice warning of the consequences of disobedience shall be served by the Applicant (and may be served by any other party to the proceedings):

(1) by service on such newspaper and sound or television broadcasting or cable or satellite or programme services or internet service providers as they think fit, in each case by fax or first class post or e-mail addressed to the editor (in the case of a newspaper) or senior news editor (in the case of a broadcasting or cable or satellite programme service) or website administrator or internet service provider (in the case of an internet service) or the administrator of any social network or media sites and/or to their respective legal departments; and/or
(2) on such other persons as the parties think fit, by personal service.

9. Further applications about this Order
The parties and any person affected by any of the restrictions in paragraphs 3 – 6 above may make an application to vary or discharge it to a Judge of the Court of Protection on not less than 48 hours notice to the parties. Reserved to Mr. Justice Baker, if available.

Date of Order: 12 May 2011

Appended to the order are three schedules identifying the persons, parties and establishments in paragraph 3(1) to (7) of the order, current and past treating healthcare professionals, and members of M's care team, and the parties solicitors.

The order concludes with the following explanatory note:
1. M is in a minimally conscious state.  An application has been made by M's mother for the Court's approval of the withdrawal of artificial nutrition and hydration.  This course is supported by M's family.

2. On 18 July 2011 the application will be heard by Mr Justice Baker sitting in public in the Court of Protection, who will give judgment in open court.

3. A Reporting Restriction Order has been made to protect M's right to confidentiality in respect of her medical treatment and welfare.  This does not restrict publication of information or discussion about the treatment of patients in a minimally conscious state, provided that such publication is not likely to lead to the identification of M, M's family (specifically B, W or S), those treating and caring for M, the NHS Primary Care Trust concerned, the NHS Hospital Trust formerly concerned, or the establishment at which M is being cared for.