M v Press Association

On 19 November 2015 I handed down judgement in relation to an application made pursuant to section 15 of the mental capacity act 2005 for a declaration determining whether it was in the best interests of a Mrs N to receive life-sustaining treatment by means of clinically assisted nutrition and hydration. At that stage treatment was provided through percutaneous endoscopic gastrostomy tube. In the course of that judgement I considered the medical evidence, the carefully considered views of the family and the framework of the law. I came to the clear conclusion that respect for Mrs N’s dignity and human freedom overwhelmed further prolongation of life and I granted the declaration in the terms annexed to the judgement.

In the course of the judgment I had particular cause to commend the family for what I have described as the complete candour of their respective accounts. I observed that none of them made even the slightest attempt to shape the evidence to their preferred outcome. In specific terms I stated “where evidence was ambivalent, in the sense that it carried a potential interpretation which pointed away from the course that they considered to be in Mrs N’s best interests, they offered it to me without embellishment or distortion”. I went on to observe how each of them had a very different relationship with Mrs N and how in their different ways each loved her but was unprepared to overlook her manifest faults and foibles. I concluded that Mrs N emerged as a woman who could be “capricious selfish and seemingly at times quite shallow” in her interests. That said, I made it perfectly clear that her prevailing characteristics were that she was immensely proud of her family, jealous of her privacy, extraordinary feisty and profoundly loyal to her children. The family’s emphasis on Mrs N’s basic and unvarnished humanity enabled her own voice to come through to the court room and I was left in no doubt as to what she would have wished for in the parlous situation that she found herself.

The hearing had taken place over four days in early November. On 2 November 2015 I made a reporting restriction order, prohibiting the identification of the first respondent and Mrs N in any press reporting “during her lifetime” I also decided that, for a period of seven days after her death, the injunction should continue.

On 17 December 2015 the applicant, M, applied to vary the RRO to extend its duration until “14 days after the final judgment in the matter of V v Associated Newspapers Ltd” [2016] EWCOP 21. In that case, to which I will refer below, Charles J was considering the scope and ambit of such Reporting Restriction Orders following the death of P. On 13 January 2016 I varied the order in the terms applied for, no party sought to contest it. On 16 December 2015 Mrs N died.

On 25 April 2016 Charles J delivered the judgment in V (supra) and on 4 May 2016 M applied to vary the RRO to extend the duration “until further order of the court”. Reliance was placed upon Charles J’s judgment in V in support of the application, which was made on notice to the parties and to the press. On 5 May 2016 I refused the application which it had been anticipated might proceed on paper and instead listed a hearing today, 22 June 2016. This hearing is on notice to the press and I have received detailed written submissions from the Press Association opposing the application.

Unlike this case the case of V attracted a considerable amount of adverse media attention which was assessed by Charles J to be “prurient rather than in the public interest”. The real interest, he considered, related to:

the capacity of an individual to make decisions about serious medical treatment;

the consequences of the conclusion of the Court of protection on whether a person has the capacity to make the relevant decision to refuse life-saving treatment.

By contrast, the reporting in this case has been almost entirely confined to precisely these issues. Mrs M’s case was particularly significant to the legal and medical professions because it represented an evolution in the existing case law, extending declaratory relief for the first time, to those in a minimally conscious state (MCS). Such declarations had previously been confined to those in a vegetative state (VS). I do not need further to burden this judgment by expanding my reasoning on these issues, they are in the public domain Re N [2015] EWCOP 76.

In summarising his conclusions, Charles J suggested that the COP should address the following questions:

are there good reasons for the hearing to be in public?

if there are should a public hearing be ordered with or without reporting restrictions?

as part of ii: How effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interest that underlie and promote those competing rights and interests?

by reference to the conclusions on the above questions, on Lord Steyn’s ultimate balancing test, should the hearing be in private or in public and if in private what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done) and if in public what reporting restrictions order/anonymity order should be made?

In response to the first of those questions Charles J suggested that the answer was almost always going to be “yes” because of the benefits of open justice and so almost always the Re S exercise (see below) will be engaged by addressing points i to iv above.

In paragraph 20 of her judgment, in Re (C) v the Secretary of State for Justice [2016] UKSC 2, Lady Hale considers the framework of the law in this area can now properly be regarded as “trite” (citing Re S (a child) (identification: restrictions on publication) [2005] 1 AC 593) as establishing the general propositions. The essence of the exercise is one of a parallel analysis in which neither the Article 8 ECHR rights, that broadly protect individual privacy, nor Article 10 rights, which safeguard freedom of expression, have precedence. To adopt Charles J’s analogy in Re V, it is a clash of titanic proportions in which the public interest in the effective administration of justice plays a significant role. It follows that whilst the framework of the law to be applied is now easy to state its application, in this highly fact sensitive arena maybe anything but.

In Re (C) v the Secretary of State for Justice (supra)Lady Hale articulates the reasoning that underpins the principle of open justice thus:

Lady Hale also makes it clear that there is no presumption of any order in any case:

As Charles J observed in V v ANL:

It follows that I must start my analysis of the weight to be given to the competing rights and interest in focus in Mrs N’s case entirely free from preconception. The Press begin their submissions with Toulson LJ’s powerful assertion in R (on the application of Guardian News and Media Ltd v City of Westminster Magistrates’ Court ([2012] 3 WLR 1343; [2012] 3 All ER 551; [2012] EMLR 22):

I am reminded, in a helpful and succinct format, of some of the key principles to be applied, which require to be identified:

The Press Association, rightly in my view, submit that the application here is, in effect, for an interim order because it seeks to extend anonymity ‘until further order’. It is contended that this falls foul of the Practice Guidance (para 40):

Moreover, the general principles summarised in para 15, resonate clearly with the wider Practice Guidance, especially paragraphs 9 -11:

I do not consider it necessary to set out each of the arguments advanced by the Press Association, they are wide ranging and vary in weight and cogency. They do make an important short preliminary submission which requires to be set out in full:

Mr Dodd submits that the differences between the facts in V v ANL and this instant case are ‘startling’. In contrast to the colourful background there, the facts here are sad and upsetting. Mrs N died following a period of initial suffering followed by relentless degeneration over 16 years. As such, not least because it would offend the Editor’s Codes of Practice, overseen by the Independent Press Standards Organisation (IPSO), media intrusion into this family’s life would be highly unlikely. I was referred to clause 4 of the Code of Practice: ‘Intrusion into grief or shock’. It also requires re-emphasis here:

Mr Dodd informs me that IPSO operates a scheme which will alert news media organisations to the wishes of individuals or families to ‘be left alone by journalists’. I should like to take the perhaps unusual step of identifying that website address in this judgment https://www.ipso.co.uk/IPSO/harassment.html

Finally, the importance of the principle of open justice, it is said, is illuminated by way of parity of analysis in the media’s right to report Inquests and I would add the public’s right to receive such reports:

This leads Mr Dodd to submit that it would be extremely unlikely that a Coroner would agree to hear an inquest into Mrs N’s death in private and further that ‘the circumstances of her death do not make this such an “unusual or exceptional case” as to justify the imposition by the court of an anonymity order which would have a similar effect’.

In the days leading up to this hearing M has plainly become very anxious both about the outcome of the application and the cost. For entirely understandable reasons she has concluded that she cannot bear further costs in this litigation. Through her solicitors, who have been energetic on her behalf, she has, this morning, indicated that she would wish me to consider her application on the basis of the available documentation and a short written submission made by her counsel, Mr Parishil Patel. No party has attended. I should say that at the time Mr Patel submitted his document he had not anticipated opposition from the Press.

M makes the following submissions in support of the application that the RRO should last “until further order”:

As I related in my substantive judgment (para’s 51 & 52) Mrs N was herself involved in litigation, now over 40 years ago, concerning her son’s paternity. This involved her discussing in court the most personal aspects of her private life. All this was in the 1960’s where public attitudes were still far less liberal and people perhaps quicker to condemn the private lives of others than they are today. I note that these proceedings took place in a courtroom to which the press would have had full access. As I re-read those paragraphs of my earlier judgment they strike me has having some resonance in this application. For this reason I set them out again:

It is important to remember that this claim was pursued at a time when DNA testing was not available. The court, in those days, required evidence which was intimate, often rather graphic and inevitably embarrassing for a young woman from a protected background. Mrs. N succeeded in her claim. Paternity was established, maintenance ordered but Z and his father have never met. What is striking is how each of the family members I heard from wanted to tell me about this aspect of their history. They plainly respect Mrs. N for her courage and determination and each recognises the personal cost and effort involved. They all knew her as a woman for whom outward or public appearance was enormously important. I think each of them struggled to imagine how she had managed to force herself through litigation of that kind. They recognised in it an indomitable spirit which they saw flashes of in different contexts over the years.”

At the hearing the family volunteered this evidence, which might not at first glance seem entirely relevant to the issue with which I was concerned. It was however, as I recorded, striking how each family member independently emphasised what had obviously become a significant part of their history and which they saw as defining Mrs N’s indomitable spirit. Whilst Mrs N would not have expressed it in the terms I do, I have no doubt that she would have been alert to the three significant rights in focus in her own application: her son’s right to know the identity of his father; her own right to privacy; the right to freedom of expression given effect to by access of the press to that process. I note, to take up the point addressed above (at para 18) that following that Court’s declaration, paternity would have become a matter of public record.

When M first brought this application I do not believe that it was generally regarded as having great prospect of success. In the end, three of the country’s most distinguished experts were broadly in agreement and the Official Solicitor, after much careful reflection, changed his mind and supported M’s application. As the judgment records, so significant did I regard this issue to be, in the evolution of the case law that notwithstanding the broad professional consensus, I required Mr Lock QC, acting on behalf of the Official Solicitor, to test the evidence objectively in an investigative non partisan manner. This he did with characteristic professional discipline.

I emphasise these matters because the decision I was being asked to take is one of the most difficult required of any Judge in any Court. It requires there to be a process which is not only rigorous but transparently so. As medicine itself progresses what constitutes life or consciousness becomes increasingly challenging to define. In a society where more of us grow old and potentially vulnerable it is self evident that the public is entitled to be fully informed on these issues. Cases of this kind in the Court of Protection add to that sum of knowledge. The integrity of the investigation requires to be beyond doubt. There is a risk, as explained in the case law above, that both the integrity of the process and the proper dissemination of the information maybe compromised by cloaking the parties with anonymity. This will of course be necessary in some cases but those cases will, as has been submitted, require cogent and compelling evidence to justify the making of a RRO.

The experience of grief is one unique to the individual, it takes on many forms. I am sure that this family began to grieve for Mrs N some considerable time ago. I am equally confident that their present grief is none the weaker for being in some way already familiar. I have no doubt that having brought this application M, in particular, requires both peace and privacy. I feel bound to say that she falls securely within those individuals contemplated within the Editor’s Code of Practice (see para 19 above). Though there is of course no guarantee against press intrusion, there is no evidence at all of any having occurred in the last few months, as there might have been, notwithstanding the existence of the interim order. Nor does a dispassionate analysis of the facts point to any significant intrusion in the future.

Judges of this Court are not inured to the day to day realities in these cases. I have no doubt that those closest to M and her family, those who matter to the family the most, will have identified Mrs N from the facts of the case. For those beyond that circle, the name of the individual serves only to make her story more real and the issues it raises more acute. Therein lies the public interest. By contrast the introduction of both Mrs N’s and M’s name into the public domain has relatively limited impact on M’s privacy or Article 8 rights more generally. Certainly there is no real evidence to that effect.

In Re Guardian News and Media Limited [2010] UKSC 1; [2010] 2 AC 697 Lord Rodger’s addresses this issue in paragraphs which, for obvious reasons, have become well-known:

I am acutely conscious of M’s deep seated wish to preserve her mother’s anonymity in this case, as well of course, as her own. For the reasons I have analysed above I have come to the firm conclusion that the balance here weighs more heavily in favour of freedom of expression. It may well be that Charles J contemplated a situation not dissimilar to that which has arisen here in V when he said (at para 150):

Of course, as has now been analysed in a number of cases in the Court of Protection, evaluating P’s best interests will invariably involve the Judge considering the wider canvas of P’s life, often via the conduit of evidence from family members. Inevitably, that involves an inquiry into the private sphere which will usually engage facets of the rights protected by Article 8. It is unlikely, in my view, that many cases will be confined solely to assessing the advantages or disadvantages of a particular course of treatment without considering some of the circumstances of the individual patient. In this case whilst I have undoubtedly considered features of Mrs N’s life, character and personality, the issue of withdrawal of hydration and nutrition from a patient in MCS is plainly the predominant one. Indeed, I think it can properly be characterised as one of the major issues in contemporary life.

The challenge, in the parallel analysis of the competing rights and interests in play, is that the rights in contemplation are of wholly different complexion. The exercise involves the juxtaposition of the intensely personal (grief, loss, privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice). In a jurisdiction where there is a human, and inevitable pull to the protection of the vulnerable, (this is after all the Court of Protection), it is easy to overlook how some of the wider, abstract concepts also protect society more generally and in doing so embrace the vulnerable.

Mrs N, Susan Rosenbaum as she may now be known and her daughter M, Miranda Rosenbaum, have, whilst unnamed, already gained the respect and sympathy of the vast majority who read about them. The case, brought by Ms Miranda Rosenbaum, has also added significantly to the public knowledge and understanding of issues that any one of us might have to confront. As I have already commented, there are echoes of her mother’s own courage and determination, from that legal action 40 years ago, reverberating through this application. Ms Miranda Rosenbaum has shown enormous strength in bringing this application. I hope that this family will be allowed peace and privacy to heal from their long ordeal.

The Press Association did not raise the question of jurisdiction in this application. Charles J identified the issue as to whether the COP has powers to grant a new injunction because it relates to proceedings that were before it, although by reason of its decision and / or the death of P it no longer has any jurisdiction to make the welfare order sought. Section 47 of the Mental Capacity Act 2005 provides that ‘the Court has in connection with its jurisdiction, the same powers, rights, privileges and authority as the High Court’. As the COP does not have an inherent jurisdictional power the issue is whether in entertaining this application for an injunction the Court is being asked to utilise a power that can properly be said to be ‘in connection with its jurisdiction’.

Charles J considered the answer to be that the Court is exercising a power ‘in connection with its jurisdiction’, concluding that the nature and extent of the relevant Article 8 rights relied on, derived from the very existence of the earlier proceedings. To construe section 47 in such a way as to limit it to a period circumscribed by the lifetime of the subject of the proceedings would be to take an unnecessarily restrictive construction of the language of section 47. Furthermore, it would ignore the important interpretive principle that legislation should be construed, so far as possible, in a way which is compatible with convention rights. I respectfully agree but, like Charles J, to avoid uncertainty, I would wish to make clear that in considering this application, I do so as a Judge of the High Court as well as a Judge of the Court of Protection.