Reporting Restriction Orders granted in the Court of Protection can also cover inquest proceedings

The recent case of V -v- Associated Newspapers Ltd & Others [2016] EWCOP 21 held that Reporting Restriction Orders (RROs) granted in the Court of Protection (COP) can extend beyond the death of the patient subject to the proceedings, and can even apply to prevent the patient being identified in press reports of ensuing inquest proceedings.

The case concerned a woman known as C, a 50-year-old mother who, following a diagnosis of breast cancer and an unsuccessful suicide attempt, refused life-sustaining treatment. An application was therefore made to the COP by her treating NHS Trust for a declaration as to C’s capacity to make decisions relating to her treatment and whether, if she lacked capacity, life-sustaining treatment could be given in her best interests. The COP ruled that C had capacity to refuse life-sustaining treatment. At the start of the proceedings, the COP granted a ‘normal’ RRO preventing publication of information that would lead to the identification of C or any member of C’s family and preventing information being sought about C from a member of C’s family. The RRO was only to have effect during C’s lifetime. Following the COP hearing, C continued to refuse treatment and passed away on 28 November 2015.

The COP judgment was published on 30 November 2015. It did not identify C but made remarks about C’s lifestyle and, in particular, noted that C no longer wished to live because she feared becoming ugly and because her life lacked ‘sparkle’. The judgment attracted significant media attention with many of the newspaper articles focussing upon C’s lifestyle. One headline read ‘Mum who fought to die was a man eater obsessed with sex, cars and cash’. Some newspapers published pixelated photographs of C in low-cut dresses and of her two adult children V (the subject of this application) and G. Journalists also ‘door-stepped’ C’s ex-husbands for information. C’s family were distressed by the press intrusion and V made an application to the COP for the RRO to be extended beyond C’s death. The issues for the COP to decide were as follows:

• Did the COP have jurisdiction to make RROs despite ruling that a patient had capacity?
• If so, could such orders extend beyond the patient’s death?
• Was Article 8 ECHR (right to a private and family life) engaged in this case, and if so was it outweighed by Article 10 ECHR (right to freedom of expression)?
• How long should an RRO last?

Mr Justice Charles held that:

• The COP has jurisdiction under section 47 of the Mental Capacity Act 2005 to make RROs even where it has been decided that the patient has capacity or has died, since such orders are being sought ‘in connection with its jurisdiction’.
• RROs in serious medical treatment cases can extend beyond the death of the subject of those proceedings. There is no presumption or default position that such orders should end on the patient’s death.
• The Article 8 rights of C’s family were engaged. When balancing the family’s Article 8 rights against Article 10 rights, there was no countervailing public interest that justified C and her family being identified.
• The RRO should be granted for an indefinite period and in particular should cover any reports into the inquest into C’s death. This is, of course, distinct from C being named during the course of the inquest. In an inquest, the deceased must be named, notwithstanding any existing RRO, to comply with the coroner’s statutory duty to complete the particulars required for registration purposes (including, therefore, the name of the deceased).

Commentary

This case emphasises the importance of making applications for RROs in COP proceedings and also highlights that due consideration should be given to the duration of any RRO. Specifically, the COP provided some useful guidance when considering private hearings/RROs:

• Are there good reasons for the hearing to be in public?
• If yes, should an RRO be granted, taking into account the competing interests of Article 8 and Article 10?
• If the hearing is to be held in private, what documents (with or without redactions and anonymisation) should be disclosed to the public?
• If the hearing is to be held in public, what should be covered by an RRO and for how long?

If you would like to discuss anything raised in this article, please contact one of the authors below.