Court of Protection extends reporting restriction

Family Law|April 26th 2016

There is no public interest in naming a woman who refused lifesaving treatment, the Court of Protection has ruled.

The 50 year-old had seriously damaged her kidneys following a suicide attempt. She had lived an eventful life and married four times, but then ran into a cluster of personal problems including a bad break-up and a diagnosis of breast cancer.

The woman refused the dialysis treatment which doctors said would save her life, insisting that she had no wish to go on living after losing those aspects of her life which had previously ‘sparkled’ –  in particular her youth and beauty.

Kings College Hospital NHS Trust applied for permission to go proceed with the treatment in spite of her refusal, but the Court of Protection backed her, saying she had the capacity (ability) to litigate and a right to refuse treatment. She in fact died in a hospice after the hearing but before the judgement was handed down by the court.

Several major newspapers were keen to name the woman against the wishes of her family, but they were forbidden from doing so by the Court of Protection, which issued a temporary reporting ban, initially restricted to her lifetime.

Now, in a new hearing before Mr Justice Charles, this reporting restriction has been extended indefinitely, after he accepted he had the jurisdiction to do so both in the Court of Protection and sitting as a High Court Judge.

The media had argued that they should be allowed to name the woman, referred to in judgements as ‘C’.

The case highlighted the way in which Article 8 of the European Convention on Human Rights – the right to respect for private and family life – can clash with Article 10: the right to freedom of expression, the grounds of the media case. Which should prevail in a case which had attracted such intense interest?

The Judge set out in paragraph 9 of the judgement how the law is to be applied. It is a sensitive balancing exercise, one that must vary in each case in order to do justice to the unique circumstances. Neither article takes precedence over the other. Instead he considers the facts.

The Judge noted the views of C’s three children, referred to as ‘V’, ‘G’ and ‘A’. V formally opposed the application by five separate newspaper publishers to name their mother.

“V and [her adult sister] G have been distressed by having to be involved in the COP [Court of Protection] proceedings, and by the extensive media interest in the information about C and their family that was provided to the COP, which appears to them to have been precipitated not only by a wish to report and comment on the bases on which the COP reached its decision but also to attract prurient interest in their mother’s sexual and relationship history (including her relationship with her children…).”

Meanwhile, C’s younger daughter, ‘A’ was still a teenager. She suffered from “fragile mental health” and was especially vulnerable. Mr Justice Charles explained the degree to which she had been affected by her mother’s death.

“The suicide attempt of her mother and her subsequent refusal of life-sustaining treatment despite A’s request to her to accept treatment… have understandably had an appalling impact on A’s emotional and psychological wellbeing.”

Despite attempts by A’s father to protect her from the full reality of the situation, the teen had been become aware of media coverage to date. The Judge explained:

“Inevitably, A has now been told about certain very limited aspects of the COP’s reasoning, including negative descriptions of her mother’s character, which have upset her further. A’s father and one of her teachers are sure that if her mother is named, this will have an even more serious effect on A’s mental wellbeing and her ability to cope at school.”

Her father and sister were worried that A could be harassed or bullied if her mother’s name was published.

In addition, the family reported “numerous” attempts by journalists to contact them and people who had known C.

There follows a typically detailed judgement from Mr Justice Charles which concluded that the Article 8 rights of the family in this case should prevail and therefore that the reporting restriction should be indefinitely extended pending a “further order of the court.” Further, that the forthcoming inquest into C’s death must also be anonymised.

This is a humane judgement following a terribly tragic case made worse by headline-grabbing newspaper reports heavy on insensitive sensationalism. It is a ruling moreover that demonstrates the benefits of the European Convention on Human Rights which has come in for a great deal of criticism, much of it  unfair and misinformed.

Even if we were to leave the EU, our membership of the ECHR, which was set up by the Council of Europe and is distinct from the EU, could continue. Personally I would hope it does.

Mr Justice Charles’ ruling can be read here.

Image by Hans Marschdorf via Flickr under a Creative Commons licence

Author: Stowe Family Law

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