These appeals concerned two end of life cases, involving children, in the Family Division. The cases were commenced by the treating NHS hospital trusts. In the Abbasi case, the child died in 2019 before a full hearing. In the Haastrup case treatment was withdrawn and the child died in 2017 following a declaration of the High Court.
In each case contra mundum injunctions were issued on the application of the trusts at the outset, preventing publication of the identities of the clinicians and hospital staff involved. The trusts were concerned to protect them against unlawful harassment and/or intrusion into their private and family lives, especially through social media, by persons opposed to the trusts’ decisions to withdraw treatment. The hospitals could be identified in media coverage of the two cases and the parents criticised the clinicians, but without them being publicly identified.
By 2020 the parents wished to speak publicly criticising some of the clinicians by name.
The Trusts remained concerned that this would trigger such interferences with their ECHR Article 8 rights by third parties. In 2021 the President of the Family Division dismissed applications by the parents to discharge the injunctions. The Court of Appeal allowed the parents’ appeals in 2023.
In dismissing the appeals of the Trusts, the Supreme Court has reviewed the relevant law and practice. It has held:
- Where necessary the High Court can grant such injunctions for so long as is necessary to protect the interests of the children, under its parens patriae jurisdiction and its inherent jurisdiction to protect the administration of justice. It can also do so where necessary to prevent interference with the statutory functions of the hospitals (see Broadmoor Special Hospital v Robinson).
- The High Court also has jurisdiction to grant such injunctions where necessary to protect the rights of clinicians and staff in proceedings brought or continued by them in reliance on their rights. If appropriate these may be brought by one or more clinicians in a representative capacity.
- In principle the court can issue such injunctions in proceedings brought by NHS trusts relying on its statutory power to grant injunctions under s.37 of the Senior Court Act and s.6(1) of the Human Rights Act if that is the only way in which the clinicians’ Art 8 rights can receive effective and practical protection. But this will not be necessary if the parens patriae or Broadmoor jurisdictions enable it – or where it is practical for the clinicians (or a representative) to be joined to assert their own claims.
- At the outset of the proceedings the interests of the child, and the need to secure the administration of justice, are likely to justify making an order where there is a significant risk that public identification of the clinicians will interfere with the child’s right to confidentiality and privacy, and undermine their care; also under the Broadmoor principle and where the clinicians (or a representative clinician) are joined in order to protect their rights.
- The initial injunction should be of limited duration. It should be to the end of the best interests proceedings and, if the child dies or the declaration approving withdrawal of treatment is granted, for a subsequent “cooling-off” period. The length of the cooling-off period will depend on the court’s assessment of the continued risk of interference with the trust’s treatment of other patients, and the time reasonably needed for clinicians to take advice about their personal rights. It is likely to be weeks rather than months or years.
- If the clinicians want the injunction to extend beyond the cooling-off period they should apply to the court, relying on any relevant cause or causes of action, and supported by relevant evidence. The court should consider the domestic law first and in any balancing act between the competing Art 10 rights (of the parents and the media) and the Art 8 rights the need for a restriction on the free speech rights should be convincingly established. It should consider the well-establish criteria laid down by the ECtHR for balancing these rights.
- Weight can be given to the importance of protecting clinicians from unfounded accusations and consequent abuse. This is a legitimate aim. But the treatment of patients in public hospitals is a matter of legitimate public interest, and medical and other staff at NHS hospitals are public figures for the purposes of the ECtHR so that the limits of acceptable criticism of them are wider than in the case of private individuals.
The President should not, therefore, have extended the injunctions in 2021 in circumstances where the clinicians had not been joined to the proceedings and asserted their rights. But even if they had been, the evidence before the court in 2021 did not demonstrate a real risk of invasion of privacy (or some other form of wrongful conduct) justifying extension of the injunctions at that stage.
Gavin Millar KC represented the Newcastle upon Tyne Hospitals NHS Foundation Trust instructed by Sintons LLP; and Kings College Hospital NHS Foundation Trust instructed by Hill Dickinson LLP.