Key takeaways
Supreme Court confirms power to grant injunctions
Courts can protect healthcare professionals during and after proceedings
Clear rules on who can seek protection
Medical staff must apply directly once cases conclude
New framework supports legal and clinical clarity
Four-stage structure helps NHS trusts plan ahead
The long-awaited Supreme Court Decision on reporting restrictions in the Abbasi and Haastrup cases has been handed down this morning, 16 April 2025. Please click here to view the full judgment.
The appeals brought by Newcastle Upon Tyne Hospitals NHS Foundation (NUTH) and King’s College Hospital NHS Foundation Trust (KCH) represented jointly by Gavin Millar KC of Matrix Chambers and Fiona Paterson KC of 39 Essex instructed by Kathryn Riddell and Robert Burn of Sintons LLP for NUTH and Kiran Bhogal of Hill Dickinson LLP for KCH have both been dismissed and the reporting restriction orders (RRO) made by the High Court are to be discharged.
While the appeals turned on the specific facts of the cases involved, the Supreme Court has clarified the law in a crucial respect, ie once best interest proceedings are concluded, only the clinicians themselves (as opposed to their employing NHS trust) have standing to apply for injunctive relief unless the trust wishes to argue (and can give evidence) that the trust is being prevented from fulfilling its functions by the actions of third parties. Equally crucially, the judgment makes clear that the court does have jurisdiction to make injunctions in best interests proceedings.
The lead judgment by Lords Reed and Briggs (with whom Lords Hodge and Stephens agree), and which Lord Sales expands upon in a second concurring judgment, identifies four key periods in best interest proceedings, which affect the provision of injunctive relief to clinicians, having regard to the various jurisdictional bases for such orders in best interest proceedings.
The jurisdictional bases
The parens patriae jurisdiction – to protect the interests of the child which may, by necessity, extend to prohibiting the identification of the child’s carers. The Supreme Court notes at paragraph 61 that:
"The court’s power to prohibit the publication of information about the child’s carers, as derived from its parens patriae jurisdiction or alternatively from its jurisdiction to ensure the effectiveness of its orders in respect of the child’s treatment, is based on the need to prevent interferences with the ability of the carers to care for the child. It is not based on concern for the carers’ rights or interests for their own sake".
And at paragraph 65, that:
"The jurisdiction is only available as long as the child is alive...There is therefore a risk that an injunction granted under the parens patriae jurisdiction may cease to provide the protection needed both by the trust, if there are other gravely ill children being treated by the same clinicians, and by the clinicians themselves, if the child dies during the course of the proceedings or within a short time of a decision approving the withdrawal of life support".
The Broadmoor jurisdiction – that is the right of a public body to apply to the court for an injunction to prevent interference with its performance of its public responsibilities. The potentially abrupt end of the jurisdictional basis for the RRO can be addressed through a ‘cooling off period’ following the death which would ‘provide time for the clinicians themselves to seek an injunction on the basis for their own right to privacy, if they have not already done so, and if an order continues to be necessary’. During this time, the jurisdictional basis is the Broadmoor jurisdiction (established in Broadmoor Special Hospital Authority -v- Robinson [2000] QB 775) on the basis that it is necessary in order to enable the NHS body to fulfil its responsibilities to other gravely ill children under its care). This is available for as long as there is a risk of interference with the NHS body’s performance of its functions. At this stage the existence of the threat cannot be established merely on ‘the basis of evidence concerned with events in other cases at a time when the proceedings for a declaration remained live, or where publicity had not been restricted. Nor can the Broadmoor principle be applied on the basis merely of concern about the potential impact of publicity on the morale of hospital staff, or on the willingness of clinicians to practise in particular areas of medicine’.
The inherent equitable jurisdiction and section 6(1) Human Rights Act 1998 - providing the clinicians seeking continued anonymity (in the fourth period – see below) are joined, there will be no difficulty about the court’s jurisdiction either to discharge or continue the injunction. ‘The court retains its broad equitable jurisdiction to grant an injunction aimed at minimising the risk of unlawful harassment or invasions of privacy (or the commission of other wrongful behaviour), and may in principle do so by restraining innocent persons, such as the parents or the media, if that is the only way of ensuring that unidentified members of the public do not use publicity as the basis for harassment thereafter.’
The four key periods
The institution of proceedings when the focus will be on preparation of evidence directed to the best interests of the child and when the NHS body will have to rely on generic evidence, based on the adverse effects of publicity in earlier comparable cases and the NHS body is the natural applicant.
The time between institution and the end of the proceedings (either as a result of a final order or the death of the child) while the child is still alive when the protection of an injunction is likely to be in the best interests of the child to protect the child’s right to confidentiality and privacy and will limit the risk of ‘collateral damage to the continued care being provided by the hospital’. For those purposes, the natural applicant is the NHS body.
The court has available to it its inherent jurisdiction to protect the interests of the child which also enable it to prohibit the publication of information about the child’s carers if necessary to protect the child’s interests. The court can also grant an injunction under this jurisdiction to ensure ‘the effectiveness of its orders in respect of the child’s treatment, if the injunction is needed to prevent interferences with the ability of the carers to care for the child …[and] also has available its inherent equitable jurisdiction to prevent unlawful interferences with the trust’s performance of its statutory functions..’.
Through these, the court can also provide effective protection of the rights of clinicians. If the clinicians are ‘joined to the proceedings then the court can also grant an injunction with the specific objective of protecting their rights. The court must then undertake [Article] 8/10 balancing exercise’.
A specified cooling off period after the end of proceedings or following the child’s death when the parens patriae jurisdiction comes to an end. However, at this point, the injunction need not come to an end as there may be practical reasons for it not doing so the ‘…availability of grounds for maintaining the injunction in place for a time (including the Broadmoor jurisdiction) and the breadth of the court’s equitable jurisdiction mean that the injunction can be extended for sufficient time to consider whether an injunctive protection is needed beyond the immediate aftermath of the death/end of the proceedings’ at which point the NHS trust will remain the applicant unless clinicians have been joined into the proceedings.
The potentially limitless period afterwards when clinicians may have an interest in preserving their anonymity even though a serious risk of interference with the NHS body’s fulfilment of its public responsibilities may have ended.
At this point, the NHS body will no longer ‘be an appropriate applicant, unless there remains a real risk of interference with its performance of its statutory functions’ and the appropriate persons to seek injunctions in order to protect the rights of the clinicians will be the clinicians themselves. A permanent restriction would require ‘compelling circumstances’.
In respect of this ‘limitless period’ following the ‘cooling off period’, the Supreme Court says:
"Weight can be given to the importance of protecting the medical and other staff of public hospitals against unfounded accusations and consequent abuse. However, the court should also bear in mind that the treatment of patients in public hospitals is a matter of legitimate public interest, and that the medical and other staff of public hospitals are public figures for the purposes of the Convention, with the consequence that the limits of acceptable criticism are wider than in the case of private individuals”.
General points to note
There is a significant overlap between the child’s interests, the interests of the NHS body in preserving the anonymity of the clinicians so as to avoid the adverse impact which abuse of them would have upon its provision of care to its patients, and the interests of the clinicians in preserving their own anonymity, so as to avoid violations of their rights.
The consequence of which is that ‘by protecting its own interest in the anonymity of the clinicians, the trust can also incidentally protect the clinicians’ private lives; and, so as long as the child continues to live the court can do the same by protecting the interests of this child. The trust and the court, can thus protect the private lives of the clinicians without necessarily concerning themselves directly with the clinicians’ rights’.
The RROs made in best interest proceedings are contra mundum injunctions and “wider in scope than reporting restriction orders as ordinarily understood, which restrict the reporting of court proceedings…They are also different in that they are made in proceedings that are usually held in private. In other words, unlike reporting restriction orders, they do not necessarily make inroads upon the open justice principle. For these reasons, it [is] confusing and potentially misleading to describe these injunctions as reporting restriction orders”.
Other options available to clinicians
Clinicians have a number of actions in tort open to them, which have evolved through developments in the common law (as opposed to the ECHR) including (but not limited to) misuse of private information and invasion of privacy which have to be brought by the clinicians themselves. The practical difficulties which this may entail (ie pressures of treating the child and preparing evidence re best interests) may be overcome ‘if the trust undertakes the necessary preparations, by agreement with the clinicians, and the clinicians’ application for a quia timet [precautionary] injunction against disclosure of their identity, to protect their claim to protection from harassment or privacy in tort and under article 8, is joined to the proceedings brought by the trust under the parens patriae jurisdiction or the Broadmoor jurisdiction (or both)’.
Whatever cause of action is relied upon by clinicians, ‘an appropriate balancing of interests will be necessary where defendants [clinicians] rely on their own rights under article 10 of the ECHR, but that can be done under Art 10(2) on the basis that the injunction is sought in the interests of one or more of “public safety”, “the prevention of disorder or crime”, “the protection of health”, “the protection of the reputation or rights of others”, or “preventing the disclosure of information received in confidence’. Since the precise assessment involved maybe affected by the rights relied on, it is preferable in principle that clinicians should assert their own cause of action in order for their interests to be fully taken into account…Where practical and effective protection can be provided by a domestic cause of action, there is no justification for reliance simply on section 37(1) of the Senior Courts Act read together with section 6(1) of the Human Rights Act’.
Section 6(1) HRA does not require the court to protect the Convention (ECHR) rights of individuals who are not parties to the proceedings before the court but could be parties if they chose. The court needs a pleaded cause of action with supporting evidence to weigh the Article 8/10 rights in play. It may not be possible either under domestic law or with ECHR jurisprudence ‘to treat them simply as an undifferentiated group’. In short, while it may be necessary to rely on generic evidence initially (to obtain injunctive relief), as the initial urgency of the best interests dies down, a properly formulated cause of action, with evidence, issued in the names of specified parties is expected.
Section 6(1) cannot have the effect of requiring the court to continue an injunction to protect the ECHR rights of a person who, after sufficient opportunity to do so, could be a party to the proceedings but has chosen not to.
Lord Sales judgment acknowledges that “one cannot be sure that the interests of the child and the interests of the trust will serve as an adequate proxy for the interests of clinicians, meaning that the court does not need to consider their rights“. There may be instances where the common law or statute does not strike an acceptable balance (in respect of competing rights), in which case a court as a public authority will be subject to a duty to act compatibility with s 6(1) HRA. This is significant. He reiterates that outside the initial phase and cooling off period the standard procedural requirements that the clinicians as adults with capacity should act on their own behalf is applicable.
In conclusion
This much-needed clarification that the court does have jurisdiction to make injunctions in best interests proceedings and what happens on conclusion of those proceedings will be of assurance to public bodies as with the clarity and guidance to the medical profession of the potential for them to individually seek injunctions in their own right should they wish to. Early consideration with the support of the NHS body, its legal team and their defence unions should be given to the need for continuing injunctions on conclusion of best interests proceedings as with the evidence needed in support of any application.
