Supreme Court ruling on Reporting Restriction Orders

The Supreme Court has today handed down its judgment in this 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.

The Court has unanimously dismissed the Trusts’ appeal for continuation of the RROs.

Court of Appeal decision (31 March 2023)

On 31 March 2023, the Court of Appeal overturned the decision (in the Family Division in 2021) 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, and discharged the injunctions.

An overview of the factual circumstances of the case, the initial judgment and subsequent appeal and outcome, can be found in our previous article.

The Court of Appeal’s order was stayed pending the outcome of the appeal to the Supreme Court.

Supreme Court decision (16 April 2025)

The Trusts’ appeal was unanimously dismissed, although for reasons that differed from those given by the Court of Appeal.

As to continuation of injunctions, the Court held at paragraph 102 of the judgment as follows:

“Once an injunction has been granted, the court retains jurisdiction to consider applications to discharge it or vary it. However, unless there is a proper basis on which the injunction can be allowed to continue in force, on the evidence available when the application to discharge or vary is heard, the court has no alternative but to discharge it.”

The Court added at paragraph 182(10) that these type of injunctions “should be for a limited duration”, and that a “reasonable duration would be until the end of the proceedings and, in any event that they terminate with the child’s death or the grant of the declaration sought, for a subsequent cooling-off period.” Further, the Court stated:

“The length of that period will reflect the court’s assessment of the continued risk of interference with the Trust’s performance of its statutory functions, and in particular with its continuing treatment of other patients, and the time reasonably needed for clinicians to take advice about their personal rights, but is likely to be measured in weeks rather than months or years.”

In seeking the injunctions during the initial phase and asserting “the rights of the clinicians in their employment” the Court observed that the Trusts had “proceeded in a laudable and appropriate manner”. However, with reference to the current position and the circumstances having changed, the Court held that the clinicians’ cause of action to protect their private life could not be asserted by others (i.e. the Trusts) on their behalf but would need to be asserted in a claim brought by the clinicians themselves.

The Court explained that for the purposes of the balancing act between the competing rights of those involved (namely the child, parents, Trust and clinicians) the Trust, as a public authority would not have “relevant Convention rights of its own to be balanced against the Convention rights of the parents” (paragraph 191). As such, protection of the clinician’s rights was the only basis on which continuation of the injunctions was sought, however, “those rights were not being asserted by the clinicians themselves”. Adding that if “there had been an application by the clinicians for the continuation of the injunctions in order to protect them from an invasion of privacy (or some other form of wrongful conduct), then the court would have had to consider whether the evidence demonstrated a real risk of such wrongful conduct.”

Whilst weight will be given in these Applications to the need to protect clinicians against unlawful harassment and intrusion into their personal lives, the Court emphasised at paragraph 182(19) of the judgment that in light of treatment taking place in public hospitals, clinicians would be considered public figures for the purposes of the Convention. As such, a higher threshold would be applicable to such clinicians in comparison to private individuals.

To enable the clinicians to seek legal advice on their position the trusts had requested continuation of the stay for an additional 21 days. The Court considered there was no proper legal basis for imposing further restriction on the freedom of speech in these cases, and the request was therefore declined.

Comment

The above development represents a limit to the protections available to clinicians following serious medical treatment proceedings, which have become more widely reported and commented upon through the use of social media.

Whilst it is thankfully rare, there are occasions when clinicians involved in these sometimes highly charged and public cases become targeted and vilified by individuals or groups, simply for doing their jobs and acting in a person’s best interests. Even though a higher threshold would be applicable for clinicians working at an NHS Trust (i.e. a public body) to private individuals, that should not, in our view, give licence for any criticism beyond such that would ordinarily be considered fair in the public space, particularly when those individuals may not be able to properly respond.

Where appropriate, clinicians will continue to be protected during the course of proceedings with their identities anonymised. The Court helpfully confirmed that Trusts are the appropriate bodies to act on behalf of clinicians as “clinicians are concentrating on caring for the child [and presumably those ‘protected adult’ patients] and cannot be expected to have to worry about taking legal advice and protecting their own rights” (paragraph 194).

However, there is a real concern that protections obtained in these proceedings will likely be limited to the life of the legal action itself and once the final order is made and/or perhaps once the patient dies. Following a short ‘cooling off’ period, that protection will cease and the clinicians’ identities will be publishable. To expect clinicians themselves to make applications to assert their rights to privacy beyond the life of a case, even if practically and financially supported by their employer Trust, is a disappointing outcome for those dedicated and caring individuals.