This article was co-authored by Rachel Westphal, Litigation Assistant, Cambridge.
On 31 March 2023, the Court of Appeal overturned the decision to grant indefinite anonymity orders to carers of patients involved in end-of-life proceedings. The Court concluded that parents’ Article 10 rights for free expression outweigh the clinicians’ Article 8 rights to be protected from harassment by anonymity.
This case concerned an appeal regarding the principles to be applied to an application to vary or discharge a Reporting Restriction Order (RRO) made during end-of-life proceedings that protected the anonymity of the patient, family, and carers.
This appeal was brought by the parents of children whose end-of-life withdrawal of treatment had been the subject of proceedings. Rashid and Aliya Abbasi are the parents of Zainab, who sadly died in 2019 whilst proceedings had been issued by Newcastle Upon Tyne Hospitals NHS Foundation Trust (Newcastle) for life-sustaining treatment to be withdrawn. This appeal was also brought by Lanre Haastrup, the father of Isaiah who sadly died in 2018. There had been a declaration for treatment to be withdrawn by King’s College Hospital NHS Foundation Trust.
RROs protect the privacy of the patient, the patient’s family, and those caring for the patient, as well as preventing interference with the care of the patient and other patients. Further, they ensure the integrity of proceedings.
In both cases, the RROs were indefinite and made by consent. They arose in the context of the intense public attention in the Charlie Gard and Alfie Evans cases. The Abbasi RRO included Zainab, her parents, the Trust, and a closed list of four clinicians. The RRO was varied regarding Zainab and her parents’ names and the anonymity of Newcastle expired upon the conclusion of proceedings (the onus being on Newcastle to apply to continue the order, which it did not do). The Haastrup RRO was broader, including all involved clinical and non-clinical staff, as well as clinicians who gave second opinions and opinions on transfer.
The parents applied to discharge the RROs separately in 2020, desiring to hold clinicians accountable and speak freely about their experiences. Newcastle and King’s argued to retain or impose fresh RROs, as consequences to staff from discharging the RROs could include invasion of privacy, vulnerability "to physical and/or personal attacks in social or mainstream media”, decreased mental health and wellbeing, and inability to respond to allegations. Further, this could impact the provision of care, affect recruitment, and would bypass complaint and disciplinary processes.
The judgment in the Family Division, Abbasi & Anor v Newcastle upon Tyne Hospitals NHS Foundation Trust , was decided following a balancing exercise of Articles 8 and 10 of the European Convention on Human Rights as in Re S . Article 10, concerning freedom of expression, was invoked by the parents’ desire to speak freely. However, the President found that the parents did not provide sufficient detail about their allegations. Clinicians’ Article 8 rights, regarding respect for private and family life, were invoked by concerns of potential harassment, which could harm clinicians’ wellbeing, decrease staff retention, and impact the provision of care. This risk was considered substantial and the President decided that protection afforded by staff anonymity outweighed the parents’ free expression and ordered continuation of the RROs.
The appeals include the argument that there is no jurisdiction to continue an RRO without a cause of action. In addition, it was argued that the President’s balancing exercise gave too much weight to general evidence and did not weigh open justice elements sufficiently. The interveners (The Royal College of Nursing, The British Medical Association, The Faculty of Intensive Care Medicine, The Royal College of Paediatrics and Child Health, and the Paediatric Critical Care Society) supported maintaining the RROs in light of hostility to staff working in controversial cases, decreasing trust between clinicians and parents, staff distress, staffing crises, public support of maintaining RROs, and the existence of professional regulation.
Regarding the jurisdiction argument, and with reference to earlier case law, the Court confirmed that the High Court has jurisdiction and there did not need to be a cause of action identified to make RROs.
In considering the Convention rights, neither Article 8 nor Article 10 has precedence over the other. The Court noted that the balancing exercise in this case weighs future unknown risk with known interference with free expression. The risk to clinicians with regard to Article 8 was speculative and would likely not result from the parents or the press but potential and unpredictable third parties. However, the Court observed that though both hospitals had been identified, there had not been evidence of related clinician harassment or harm. The Court found that in the earlier decision, the President did not adequately analyse the risk to clinicians. In this appeal, the risk to clinicians was determined to be low and speculative; thus Article 8 did not carry great weight in the balancing exercise.
Concerning the potential systemic impact on the NHS, the Court found that maintaining indefinite anonymity in light of this and creating a new class of anonymisation is not justified and would be controversial. The systemic impact should not have been given the weight it was in the President’s balancing exercise.
The Court considered the Article 10 rights of the parents strong. The parents wished to speak about the events and participate in the public debate concerning end-of-life treatment; there was not a lack of specificity about the parents’ desired actions. Further, the Court also considered open justice, general public interest, and debate in these matters.
With focus on balancing the Convention rights, the parents’ free speech rights were found to carry greater weight than the Article 8 rights of the clinicians in light of the low level of risk. The Court decided that the appeals should be allowed and the RROs should be discharged.
RROs protect the privacy of individuals involved in serious medical treatment proceedings and ensure proper care can be delivered without the interference that lack of anonymity could bring. However, the Court found that families’ rights to share their experiences outweighs the risk of harassment to clinicians’ following the conclusion of proceedings.
As this decision primarily concerns RROs after proceedings have concluded, the privacy of clinicians (as well as patients and families) during proceedings will continue to be protected under RROs. In addition, in instances where the risk to clinicians is greater, the balancing exercise will reflect the different weight to be given to the Convention rights. In certain cases, applicant Trusts may consider applying to extend an RRO after the conclusion of a case, where there is evidence of a risk of harm to clinicians or other staff without such protection.