Transparency in the Court of Protection: press should be allowed names

A healthcare NHS Trust v P & Q [2015] EWCOP (13 March 2015) – read judgment

The Court of Protection has clarified the position on revealing the identity of an incapacitated adult where reporting restrictions apply.

This case concerned a man, P, who as a result of a major cardiac arrest in 2014, has been on life support for the past four months. Medical opinion suggests that he is unlikely ever to recover any level of consciousness, but his family disagrees strongly with this position. The Trust therefore applied to the Court for a declaration in P’s best interests firstly, not to escalate his care and secondly to discontinue some care, inevitably leading to his demise. The trust also applied for a reporting restrictions order. When it sought to serve that application on the Press Association through the Injunctions Alert Service, the family (represented by the second respondent) objected to the disclosure of P’s identity or of his family.

The issue before the Court in this hearing was whether the media should be notified of the names of individuals in cases like this, particularly in the light of the fact that

The Court of Protection is concerned with the weak and the vulnerable. 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 decided that hearings in the Court of Protection should usually be held in private.[7]

Rule 90(1) of the Court of Protection Rules 2007 provides “the general rule is that a hearing should be heard in private”, although Rule 92 allows the court to make an order that the proceedings are held in public. The practice of the Court is to recognise that cases involving serious medical treatment usually amount to a good reason for conducting the hearing in public, subject to appropriate reporting restrictions.

When an application for a reporting restriction is made, the Press association is alerted. A party which wishes to apply for a reporting restriction order in the Family Division or the Court of Protection should notify the national media through the Injunctions Alert Service (IAS) run by the Press Association.

Although it is agreed that this alert system complies with Section 12 of the Human Rights Act, safeguarding the right to freedom of expression and the press, there is no point at which Article 10 trumps Article 8 (Campbell [2004] UKHL 22 and Re S [2004]).

On the other hand, as Jackson said in London Borough of Hillingdon v Neary [2011]:

90(1) of the Court of Protection Rules 2007 provides “the general rule is that a hearing should be heard in private”.

Media subscribers to the Press Association however are in no legal relationship to the person asking for a reporting restriction; they only have a contractual relationship with the Association. Over the years (when these cases and reporting restrictions were dealt with by the Family Division) the media has complained that applicants for reporting restrictions were frequently withholding the kinds of details such as the names of the parties which made it impossible to make sensible and informed decisions over how much of the hearing they could report.

In fact, as Newton J observed, the application notice (COP 9) is served with the media notification. The COP 9 has the parties’ names on it and it is in accordance with open justice to allow the media fully to consider whether to object. It is pragmatic, otherwise the media would have to attend every case to learn the parties’ identity. Arguably no harm is done by notification because the media cannot report the parties’ identity without being in contempt of court, both under statute and common law. It would also be a breach of confidence. Furthermore, publication would be in breach of the express contractual arrangements between media organisations and the Press Association:

It seems to me to be unnecessarily wieldy and cumbersome to require in every case for there to be an individual undertaking from each subscriber before any information can be released to them, especially as these applications are frequently heard as a matter of urgency. I am additionally impressed by the submission that there is a contractual bond (either in substance or by undertaking) which means that the recipients of the information are under an obligation not to reveal the identities of the individuals until the matter is determined by the Court, albeit to the Press Association. [62]

Disclosure of P’s identity and of his family would therefore be ordered.

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