Starting on 15 April, the highest court in the land will preside over a case concerning transparency in end of life cases.
Supreme Court judges Lord Reed, Lord Hodge, Lord Briggs, Lord Sales and Lord Stephens will uphold or overturn a groundbreaking Court of Appeal judgment which ended life-long anonymity protection for doctors in medical cases, including in hugely controversial end-of-life cases.
The case will be heard from 11am on Monday 15 April to Tuesday 16 April.
The outcome of the case will have widespread implications for the freedom of the press to report on legal proceedings.
Supported by the Christian Legal Centre, and with an intervention from the Free Speech Union, the conjoined case has been brought by two families involved in tragic and high-profile end-of-life cases.
Parents Rashid and Aliya Abbasi and Lanre Haastrup were the subject of ‘best interests’ proceedings brought by hospital trusts who wished to withdraw, against their wishes, life-sustaining treatment from their children.
The Abbasis have described the ‘toxic environment’ surrounding the medical care of their daughter, which involved the shocking arrest, captured on video, of father, Rashid, at his 6-year-old daughter’s bedside in intensive care.
The parents of Isaiah Haastrup, who suffered severe brain injuries as a result of negligence, faced a similar battle to prevent treatment being withdrawn from their one-year-old son.
In both cases, Newcastle Upon Tyne Hospital NHS Foundation Trust and King’s College Hospital NHS Foundation Trust, obtained extremely broad, worldwide reporting restrictions.
These restrictions have prevented the press from exploring the serious concerns that both sets of parents raised about the processes surrounding the treatment of their children.
The gagging orders have prevented both sets of parents from telling the full stories of what happened to them.
Reporting restrictions in such cases usually cease when the child’s life ends. However, in these two cases the High Court ruled that they should continue indefinitely. This decision was overturned in the parents’ favour at the Court of Appeal, before now being heard in the Supreme Court.
The contested issues in such cases involves a balancing exercise between the competing article 8 rights (which concern the right to privacy) of the hospital staff and the article 10 rights (which concern the right to freedom of expression) of the parents involved.
The importance of open justice
In June 2021, when the families originally brought the case challenging the restrictions, the President of the Family Division, Sir Andrew McFarlane, held that identities of all clinicians involved should remain secret forever.
The rationale put forward was to keep secret the identity of clinicians involved in case of any public backlash.
This ruling represented a change of the law compared to the system established by his predecessor Sir James Munby, who repeatedly stressed the importance of open justice in family courts, and in particular, that only individuals (but not classes of people) can be anonymised if there are special reasons for doing so.
The families won the right to appeal this ruling in May 2022 with lawyers for the parents arguing that the High Court had erred in law, that restrictions are no longer justified and their continuation breaches the families right to freedom of expression under Article 10 of the European Court of Human Rights (ECHR).
Court of Appeal win and Supreme Court
In a groundbreaking judgment, the Court of Appeal overturned the High Court judgment, ruling that the imperatives of open justice demand that people involved in legal proceedings be publicly identified and that people caught up in disputes with the state be allowed to tell their story. The ruling said:
“The intense focus on the specific rights being claimed delivers the clear conclusion that the article 10 rights of the parents in wishing to “tell their story” outweigh such article 8 rights of clinicians and staff as may still be in play.”
The Court rejected that notion that the Human Rights Act obliged the grant of anonymity in these cases:
“We are aware of no Strasbourg case which has come close to allowing concerns about morale, recruitment or general well-being of health staff to provide a justification for curtailing the right to free expression about individual experiences whilst being cared for, or on matters of general public interest.”
In future, under this ruling, such injunctions would only be permitted where there are the most compelling of grounds.
However, this order was stayed pending both NHS Trust’s immediately appealing to the Supreme Court, which was subsequently granted.
In addition to the support being provided to the families by the Christian Legal Centre, the Free Speech Union has provided written submissions for the Supreme Court supporting the families’ position.
Andrea Williams, chief executive of Christian Legal Centre, said: “The Court of Appeal ruling set proper limits to the secrecy of family courts proceedings. Withdrawal of life support from a child is the gravest decision which the doctors and judges can ever make. Transparency is essential to ensure proper scrutiny of those decisions by the public and especially by the medical profession.
“We know from experience that even in cases of profound disagreements between families and doctors, most families have a lot of praise for health professionals who had done their best for their child. There may sometimes be criticisms of particular actions by particular doctors. The best way to get to the truth of the matter is through open courts . Professionals who have done nothing wrong have nothing to fear from transparency.”
“It is now crucial for the Supreme Court to uphold the Court of Appeal’s ruling.”