Manchester University NHS Foundation Trust v Namiq & Anor

This is an application for a reporting restriction order (RRO) limiting the reports on the naming of the clinicians and nursing staff at the treating hospital. I have dealt with the substantive issues relating to this case in the main judgment and I will not repeat any of that information.

MacDonald J granted an RRO prohibiting the naming of any of the treating staff, when the application came before him on 19 December 2019 and I have continued that order up to the end of the hearing. The Trust applies for the order to be continued, the parents both oppose it through Mr Quintavalle, and the Guardian (Mr Power) does not oppose it. Mr Farmer on behalf of the Press Association put before me written submissions opposing the order and also making some specific points which I will refer to below.

These are proceedings in the Family Division concerning a child. As such, Rule 27.10 of the Family Procedure Rules 2010 provides that the present proceedings should be heard in private unless the Court directs otherwise or another enactment directs otherwise. Pursuant to Section 12(1)(a)(i) of the Administration of Justice Act 1960, publication of information relating to such private proceedings would amount to contempt of court.

I took the view, and all parties agreed to this, that given the importance of transparency in the family courts and the level of public interest in cases concerning the end of life, particularly in young children, the case should be heard in open court subject to an appropriate RRO. The parents wished for Midrar’s name to be published, and given the facts of the case, the Guardian did not oppose this. There was no application that the name of the hospital or the NHS Trust should not be disclosed. The sole issue is therefore the naming of the healthcare professionals who are, and have been, involved in the treating of Midrar. I note at this point that there is one clinician, Dr Y, who is from a different hospital has not been treating Midrar but who was asked to examine him and the notes in order to give an independent opinion in the hope of reaching agreement with the parents. Although Dr Y is not actually a treating clinician he was not instructed as an independent expert in the litigation. I have taken the view that he should be treated in the same way as the professionals who have been treating Midrar.

The Trust have submitted a witness statement from Dr G supporting the making of the RRO. She refers to the fact that staff and herself have been psychologically affected by maintaining care for Midrar where death by neurological criteria was first confirmed on 1.10.19. She also sets out the staff are concerned about being at the centre of a media storm, and potential disruption to staff, patients and their families. She also raises a worry about staff being discouraged from expressing honestly and sincerely held views, and the potential of dissuading experts from becoming involved in these controversial cases.

The Father’s position is that openness is important for public confidence, and that it aids accountability. Mr Quintavalle argues that Dr D’s position is akin to that of an expert. He also refers to the fact that there has in this case been no harassment of staff, and the parents have maintained a polite relationship with staff.

I also had written submissions from Mr Farmer on behalf of the Press Association. He resists the RRO and argues that the grounds set out by Dr G are insufficient to override

I start with the Practice Guidance issued in 2014 on Transparency in the Family Courts: Publication of Judgments. This stresses the importance of greater transparency in the family courts in order to improve openness, public understanding and confidence in the family justice system. I entirely agree with this sentiment and I have made clear throughout my involvement in the case that the hearings would be in public and the judgment would be published. That does not mean however, that the professionals involved should necessarily have their names published.

My attention has been drawn to two decisions of Sir James Munby when he was the President Re J (A Child) [2013] EWHC 2694 (Fam), and A v Ward [2010] EWHC 16 (Fam). In re J at [31-34] the President said;

Re J was a care case where the issue was the publication of information on social media. Therefore, although the generality of the comments set out above are highly relevant, the specific issue in this case was not addressed. In A v Ward the Court was dealing, amongst other things, with an application for an RRO in relation to the treating clinicians. Sir James said at [180-183];

Ultimately, in all these cases, the matter comes down to a balance between competing interests. There is an undoubted, and critical importance, in open justice and transparency of the court system. There is also a critically important public interest in the freedom of the press to report without restriction, protected by article 10 ECHR. There is a more specific public interest on the facts of this and similar cases, in the public understanding what is happening in these sensitive cases, and the very difficult factual and human issues involved. Often, there is an important public interest in protecting the identity of the child and the wider family. However, in this case the parents have waived their and Midrar’s confidentiality, and the Guardian raises no objection to this.

However, there are competing interests. Firstly, that of the treating professionals to their private life (protected by article 8). Secondly, there is a strong public interest in professionals who are doing a difficult and extremely important job (the care of critically ill children) in being able to do that job without feeling that their privacy and their ability to work is being jeopardised. Not least, the public interest lies in ensuring that appropriately qualified people do not avoid these type of cases because of the fear of becoming the target of hostile comment, and that comment even extending to their families.

My task is to balance those interests. In my view the public interest in open justice is very largely protected in the present case by the fact that the proceedings are in public and the judgment is in public. Further, relevant to the facts of this case is that the Hospital is named, as is the child. There is therefore no question of secret justice, or the public not being fully informed as to what is happening to Midrar and in the proceedings generally.

It is, in my view, difficult to see why either open justice or the public interest is harmed, save to a minimal degree, by the anonymisation of the treating professionals. This is not a medical negligence case, and although the Father has made allegations about the treatment, those are not substantiated by evidence and not pursued by Mr Quintavalle. On the other side of the balance, I do take into account the fact that this is not a case where there have been (so far as I am aware) hostile comments either in the press or social media about the hospital staff, and there has not been any harassment towards them. There has been some, but not extensive, press comment, although it is not possible to know whether this will increase or decrease after the judgment. However, these type of cases concerning the treatment of very ill young children, raise very strong views and there is a well documented history of hostile and distressing comments about treating staff in other cases. I also note that the Father has made some very damaging, and wholly unevidenced, allegations against staff. I do not consider it appropriate to wait until such hostile comment, or worse, arises and then decide that an RRO should be granted. That is to shut the door after the horse has bolted.

I accept Mr Farmer’s point that many people may find it traumatic to be named in the press in the course of litigation, and that is no ground to grant anonymity. However, the position of treating professionals is somewhat different. There is a significant public interest in allowing them to get on with their jobs, and in minimising the disturbance to them and their other patients whilst they are providing that care.

These cases are necessarily fact specific and I do not purport to set down general guidance. I do however somewhat differ from the views expressed by the President in A v Ward as set out above. This may be because the facts of the case differ. In my view there is an important distinction between professionals who attend court as experts (or judges and lawyers), and as such have a free choice as to whether they become involved in litigation, and treating clinicians. The latter’s primary job is to treat the patient, not to give evidence. They come to court not out of any choice, but because they have been carrying out the treatment and the court needs to hear their evidence. This means they have not in any sense waived their right to all aspects of their private life remaining private. In my view there is a strong public interest in allowing them to get on with their jobs without being publicly named. I do not agree with the President that such clinicians simply have to accept whatever the internet and social media may choose to throw at them. I note that the President’s comments were made before the well publicised cases of Gard and Evans, and perhaps at a time where the risks from hostile social media comment were somewhat less, or at least perceived to be less. There may well be cases where the factual matrix makes it appropriate not to grant anonymity and each case will obviously turn on its own facts. But in my view the balance in this case falls on the side of granting the order.

I do not accept Mr Quintavalle’s argument that it is only appropriate to grant an RRO if each and every person covered has been asked whether they wish for their article 8 rights to be protected and evidence produced. In the present case there are some 360 individuals set out in the annex to Dr G’s third witness statement. Midrar has been in the Hospital for four months and inevitably large numbers of people will have treated him, new members of staff may be coming onto the ward at any time. Mr Quintavalle’s submission is slightly disingenuous because it would in practice make an RRO in a case such as this unworkable. It would be wholly disproportionate for evidence to have to be produced in respect of each member of staff. I take the view that it is a reasonable assumption that members of staff treating Midrar will want their privacy protected. If, for whatever reason they do not, then they are free to raise that with the Trust, and if necessary apply to the court.

For these reasons I extend the RRO in the same terms as it currently stands to cover the treating clinical and nursing staff.