V v Associated Newspapers Ltd and Others

V’s recently deceased mother, C, had been the subject of proceedings in the Court of Protection (“the CoP”). The judge in the CoP had ruled that C did not lack capacity and the court therefore did not have jurisdiction to intervene and force her to accept life saving treatment. C died shortly after judgment. In his judgment, which was handed down publicly but did not identify C, the judge had made remarks about C’s life and her relationship with her daughters including V. He noted that C no longer wished to live because she feared becoming ugly, and her life lacked ‘sparkle’. These remarks received very wide publicity and prompted reporters to attempt to visit C’s family members, some of who had given evidence in the case. V applied to the CoP for an order preventing the identification of C, V and other  members of the family for an indefinite period.

1. Did the Court of Protection have jurisdiction to make reporting restriction orders despite ruling that a patient had capacity?

2. If so, could such orders extend beyond the patient’s death?

3. Was article 8 engaged in this case, and if so was it outweighed by the article 10 rights of the media?

4. How long should a reporting restriction order last?

Making an indefinite reporting restriction order:

1. The court did have jurisdiction under s.47 of the Mental Capacity Act 2005 to make reporting restriction orders in such circumstances, since such orders were sought “in connection with its jurisdiction”.
2. Such orders could extend beyond a patient’s death. Press Association v Newcastle upon Tyne Hospitals Foundation Trust [2014] EWCOP 6 followed.
3. The article 8 rights of C’s family were engaged, since the CoP had itself invaded the privacy of the family when considering issues relating to C’s capacity. OPO v MLA [2014] EWCA Civ 1277 considered.
4. The order should not cease upon the youngest daughter’s 18^th birthday, but instead should be indefinite. It could be revisited upon application by the parties on notice.
5. There was no countervailing public interest which justified publication. After the hearing the media, which had received the evidence from the applicant only shortly before the hearing, had in any event conceded that a reporting restriction order was warranted on the facts of this case
6. The order should include preventing the identification of C in connection with the forthcoming inquest. If she were identified in reports of the inquest this would lead to serious interference with the family’s article 8 rights.

A transparency pilot is underway in the Court of Protection which provides, amongst other things, for cases involving serious medical treatment to be heard in open court. This case demonstrates that it is likely that such cases will be anonymised to protect the privacy of patients and their families, including if the patient dies during or after the case.  The judgment gives detailed guidance as to the correct approach to be adopted where applications for reporting restriction orders are made in such cases.

• Telegraph report
• Guardian Report