V v Associated Newspapers Ltd and others [2016] EWCOP 21
In November 2015 the Court of Protection determined that an adult woman had the mental capacity to decide whether or not to refuse the life preserving medical treatment offered to her. She exercised her right to autonomy, refused treatment and died.
Such capacity decisions are made on a regular basis in the Court of Protection (CoP) – however this particular decision in relation to ‘Ms C’[1] has attracted perhaps more widespread media attention than any other Court of Protection case before it. That reporting has been characterised by the Vice President, Charles J, as:
“reporting that engaged the prurient interest of the public in the personal details of the lives of others, rather than the public interest in important issues relating to [the court’s finding of capacity to decide and its consequences].”
The back-story of Ms C’s life and her personality is clearly of the type that sells newspapers. Ms C is now know to many as the “sparkling socialite” and pixelated pictures of her have appeared in both the broadsheet and tabloid press with epithets such as “man-eater” and “obsessed with sex” in the accompanying headlines.
Reporting restrictions were, unremarkably, made at the time of the original CoP case. However, what makes this case unusual is the family’s subsequent application for the press injunction to be continued after Ms C’s death and to cover press reporting from her inquest.
The Court of Protection proceedings concerning Ms C, although held in public, were subject to the ‘usual’ reporting restriction order (RRO) which bans “the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service” of the name of the patient and her family or any details about them or any picture of them that is likely to lead to the identification of the patient as having been the subject of the court proceedings. There is nothing to prevent any reporting of information contained in the public judgment given in the case nor information about any medical condition and any proposed forms of treatment for Ms C. It is identifying her as being the relevant patient that is prohibited.
However, anyone sitting in the public CoP hearing may well have learned who Ms C was. She will also be easily identifiable to any member of the press who did not attend court, as both she and her family will be named in the confidential schedule that is normally attached to the RRO and which will have been served upon the press. The injunction however prevents that information being disseminated more widely to the public in general.
The ‘usual’ CoP RRO does not seek to curtail reporting from other courts and will, if in standard form, specifically permit “publishing information relating to any part of a hearing in a court in England and Wales (including a coroner’s court) in which the court was sitting in public and did not itself make any order restricting publication.”
However, in the case of Ms C, it may be difficult for any coroner holding her inquest not to make reference to the fact that her refusal of the potentially life-saving treatment offered to her by Kings College Hospital followed a judge of the CoP having determined that she was capable of doing so. Unfettered reporting of the inquest could immediately connect the deceased to the Ms C of the infamous CoP case, thereby rendering the ‘usual’ CoP injunction ineffective.
There had been intense press intrusion, including door stepping of family and friends of Ms C, since the initial CoP case. Charles J recognised that the family’s Art.8 rights had been engaged as the CoP proceedings had, necessarily, invaded their private and family lives and the CoP’s determination of Ms C’s capacity had had a profound effect and impact on her family. The judge heard “compelling evidence” of the extent and nature of the harm and distress that identification of Ms C would cause her family, and in particular her ‘fragile’ teenage daughter. Against that background the media respondents reasonably conceded that the balance between the Art 8 rights to privacy of the family of Ms C and the principle of free press reporting under Article 10 justified the continuation of the press injunction at least until her youngest daughter reached age 18[2].
However, on considering that time limited concession by the media respondents, Charles J stated he could discern no good reason why the balance accepted by the media would change on the youngest daughter’s 18th birthday: specifically why the “gratification of prurient curiosity” in naming Ms C would promote the public interest, or absence of identification would harm the public interest after that date.
To that end not only was the injunction extended beyond Ms C’s death, but the ‘usual’ order was amended to now exclude a Coroner’s inquest from the court exclusions paragraph of the RRO (as cited in bold italics above). The resultant RRO therefore does not prevent reporting of any inquest per se, but does prohibit reporting anything from the inquest which would directly or indirectly reveal that the deceased was the same person as the anonymous Ms C with whom these Court of Protection proceedings were concerned.
Sadly, in reporting on this case some of the press seem to have misunderstood the effect of the RRO, thereby stoking the ‘secret justice’ fires. The Guardian wrongly claimed in its headline that the “Inquest of woman who ‘lost her sparkle’ to be held without naming her ”[3] remarking upon how rare it is for an ‘anonymous’ inquest to be held. Clearly if there is an inquest Ms C must be named: the Coroner is under a statutory duty to do so under s.5(1)(a) CJA 2009 and any inquest must be held in public under r.11 Coroners (Inquests) Rules 2013. There can be no derogation from these requirements under the statute or rules.
When correctly construed Charles J’s order does not seek to curtail what the relevant Coroner may say or what evidence the inquest may hear. Nor does it prevent the Coroner carrying out his/her statutory duty. The standard wording of a RRO will only prohibit “publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service”. It is not directed at what might be said in evidence at an inquest nor can a RRO prevent press and public attending that inquest hearing. The RRO will only curtail the onward publication or broadcasting of matters stated in public at that inquest. Interestingly what the Guardian article does not report is that the media respondents did not argue against the RRO extending to the inquest proceedings – but instead remained neutral on the point[4].
[1] Re Kings College Hospital NHS Foundation Trust v C & V [2015] EWCOP 80
[2] See judgment paras 45 & 48
[4] See judgment paras. 49 & 174