Key Facts
- •ST, a 19-year-old with a rare mitochondrial disease, died on September 12, 2023.
- •Court of Protection proceedings concerned ST's capacity and best interests regarding medical treatment.
- •A Transparency Order was in place to protect the identities of ST, her family, and medical professionals.
- •The family sought to lift the Transparency Order to discuss their concerns about ST's care and pursue potential legal action.
- •The Trust proposed a continuation of some restrictions for 8 weeks to allow time for emotions to subside and to mitigate potential risks to staff.
Legal Principles
Court of Protection proceedings are generally private (COP rule 4.1(1)) but the court can order public hearings (COP rule 4.3(1)) and impose restrictions on identifying parties (COP rule 4.3(2)). Orders should only be made with good reason (COP rule 4.4(1)(a)).
Court of Protection Rules
Transparency Orders balance Article 8 (right to private and family life) and Article 10 (freedom of expression) rights.
ECHR Articles 8 and 10
In end-of-life cases, compelling evidence is needed to justify curtailing free speech. A careful analysis of risk is required, particularly concerning serious interference with private life undermining personal integrity. Generic anonymisation for swathes of professionals based on systemic concerns is inappropriate; each case needs careful scrutiny.
Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331
The court has jurisdiction to make and set aside Transparency Orders.
Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331
Outcomes
The Transparency Order was lifted regarding ST and her family.
The proceedings are over, and there is no justification for continued anonymity. The family's reasons for wanting the information released are compelling.
The Transparency Order remains in place for clinical and nursing staff for 8 weeks.
To balance Article 8 rights of staff (risk of harassment and abuse) with Article 10 rights of the family and media. A short 'cooling off' period is proportionate given the recent death and high emotional state.
The Trust can be immediately identified, but specific hospitals attended by ST cannot be named to prevent jigsaw identification of clinicians.
Identifying the Trust is inevitable, given the identification of ST. However, naming specific hospitals risks identifying clinicians.
Anonymity for expert witnesses is lifted.
No compelling reasons were presented to maintain anonymity.