Court of Appeal substantially limits NHS Trusts’ ability to seek injunctions to prevent naming of treating clinicians after Court of Protection or best interests proceedings have ended

The Court of Appeal has decided that injunctions to prevent the naming of clinicians who are treating a child who is subject to a best interests court case should usually not continue for anything other than a short period after the conclusion of the case.  This case was decided within High Court proceedings concerning serious medical treatment for a child, but the same approach must apply in Court of Protection cases.

Life and death cases, especially involving children, give rise to public debate.  These cases get extensive media coverage and generate huge levels of emotion.  The cases involving Charlie Gard and Alife Evans were not only discussed widely in the media but also led to public protests outside the hospitals, with many of the medical professionals involved being subject to wholly unjustified allegations that amounted to harassment.  Those types of experiences fully justify orders to prevent treating clinicians from being named during the proceedings, but can NHS Trusts seek to maintain those orders after the child has died and the proceedings have come to an end, particularly if the parents have issues about how they have been treated or the medical treatment provided to their children they wish to raise in the media?

In a case involving the parents of two children who were the subject of best interests proceedings and subsequently died, the President of the Family Division decided anonymity injunctions preventing clinicians being named could continue long after the proceedings had ended.  That injunction prevented the treating clinicians being named despite the fact that there was, at that stage, no independent cause of action on which such injunctions was based.  That decision has now been overturned by the Court of Appeal:  see Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331.

The Court of Appeal allowed the appeal and hence (subject to any appeal to the Supreme Court) allowed two sets of parents to name clinicians who were involved in the treatment of their child.  The court commended the practice of limiting such injunctions to 28 days after the conclusion of the proceedings or death of the child.  It emphasised that any further applications for post-proceedings injunctions would need to be supported by a factual case which was based on very specific circumstances and not on general concerns about the positions of clinicians. In summary, the Court decided that the article 8 rights of the clinicians were engaged and no injunction should be granted because their rights were substantially outweighed by the article 10 rights of the parents to “tell their story”.  That brings the law back to the position outlined by Munby LJ in Re Ward [2010] EWHC 16 (Fam).

The court said it was not prepared to “continue the indefinite injunctions against the world has, in effect, created a generic class of anonymisation which endures after the end of proceedings and which is divorced from the individual circumstances of the cases or the individuals involved”.

The Court was particularly critical of the attempts to prevent public debate about the actions of doctors and other clinical staff.  It said:

“We have seen that the President adopted the approach advanced upon him by the Trusts and medical interests to take into account the systemic problems in the NHS and the systemic impact, as they saw it, of a failure to accord indefinite anonymity to those involved in end-of-life cases. It is impossible to imagine a free-standing application (unconnected with an individual case) on behalf of hospitals, learned societies etc. to accord anonymity to swathes of professionals engaged in work such as this. There would be no legal peg on which to hang it. We have real doubts whether these factors fell into account at all in determining the application by the parents to discharge the injunctions. But, in our view, they could carry very little weight in a balance with article 10 rights on the other side”

Unless this decision is subject to an appeal to the Supreme Court and absent very particular circumstances, NHS bodies involved in best interests proceedings should limit their applications for anonymity injunctions to the period of the proceedings and a short (and defined) time thereafter.

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David Lock KC acted for Mr and Mrs Abbasi in the High Court and in applying to the Court of Appeal for permission to appeal, but was not able to appear in the Court of Appeal hearing.