Speaking out - when can the court stop you from publicly criticising hospital staff?

Samantha Broadfoot NEW 1

Court rules that, where there are best interests proceedings about treatment for a child, a blanket prohibition on parents’ ability to name clinical staff when they raise concerns in public is not a disproportionate interference with their free speech rights Introduction: It is common in Court of Protection and Family Court proceedings, particularly involving tragic ‘end of life’ cases, for the Court to issue a Reporting Restriction Order (“RRO”) prohibiting the naming of any medical clinicians as being involved in the care and treatment of a child.  Those prohibitions can last long into the future, and after the death of the child concerned. What happens when the parents (who in Abbasi and Hastrup were both doctors themselves) want to bring attention to the treatment their child received and want to highlight what in their view is a dysfunctional hospital department, where they believe others might otherwise suffer in the way that they have? The parents say they cannot raise issues about poor treatment without naming the clinicians, but the RRO prevents them from doing so. In Abbasi v Newcastle NHS Foundation Trust; Hastrup v Kings College Hospital NHS Foundation Trust [2021] EWHC 1699 (Fam), the court considered how to balance their free speech rights against the article 8 private rights of clinical staff not to be vilified on social media, hounded in their jobs and potentially put at risk following such public criticism.  The President of the Family Division held in Abbasi and Hastrup, a decision handed down on 23 June, that the family and private rights of the clinical staff outweighed the free speech rights of the parents. The arguments: On behalf of the Abbasi parents[1] it was argued that (a) the RRO was issued in the best interests proceedings and served its purpose in those proceedings; thus, should not be continued once those proceedings had come to an end, and (b) the Court had no jurisdiction to make a fresh injunction against the parents from exercising their free speech rights where in doing so, they would be committing no legal wrong in naming the doctors.  For the Court to have jurisdiction to continue or remake the RROs, there had to be either a proper purpose for the existing proceedings (which there was not as those proceedings had ended) or a legally recognised cause of action for a new injunction. It was also argued that the Hospital Trust could not seek relief against the Drs Abbasi because the ECHR rights the Trusts were seeking to exercise were those of the hospital staff members themselves, and not the Trusts’ which were not a victim within the Human Rights Act 1998. On behalf of the Trusts, it was argued that there was an extant RRO and so the underlying proceedings continued to exist, noting that all the parties had made applications within those proceedings and that the Court therefore had jurisdiction to resolve the dispute on the question of the competing Article 10 and Article 8 rights between the parties. The decision: The Court left open the question as to whether there was jurisdiction to make an RRO in respect of NHS staff who were not parties to the original proceedings [§73] and proceeded on the basis that the Court had the power to do so within its inherent jurisdiction.  Thus, in accordance with the precedent that had been developed, it had been justified in making the original RROs in these cases.  Those were made both during the life of the child and continued after the child’s death.  In taking this as its starting point, the court specifically left open the way for a challenge to that assumption to be brought in a different case. It held that it had “constitutive jurisdiction” within the respective inherent jurisdiction proceedings on two grounds:

  1. the need for the court, if called upon, to review the continuation of orders that it has made that continue to be in force, and,
  2. because the original proceedings continue insofar as the RROs were made within them and those orders continue to be in force [§79].
The court did not address the primary point made by Drs Abbasi that the proceedings were effectively ended with the death of the child; thus, ancillary orders made to assist in that decision making process should also come to an end.  It did not address the parents’ argument that continuing the injunction was a misuse of the original injunctions. Having established that there was a “constitutive jurisdiction” the Court addressed how the balance should be struck between the parents’ Article 8 and 10 rights and the Article 8 rights of the anonymised hospital staff.  The Court held that it should follow the approach laid down by Lord Steyn in Re S [2004] UKHL 47: “First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.” The Court rejected the argument that the Trusts had to show ‘compelling reasons’, holding that it was time “to draw a line under A v Ward insofar as it purposed to establish that anonymity is not to be afforded to a class of professionals unless there are compelling reasons for doing so”, stating at §96: “Why should the law tolerate and support a situation in which conscientious and caring professionals, who have not been found to be at fault in any manner, are at risk of harassment and vilification simply for doing their job? In my view the law should not do so, and it is wrong that the law should require those for whom the protection of anonymity is sought in a case such as this to have to establish 'compelling reasons' before the court can provide that protection.” Applying the Re S approach and an “intense focus” on the comparative importance of the specific rights being claimed with respect to each of the competing interests, the Court held that the balance firmly came down in favour of the maintenance of anonymity. Comment: The judgment is well worth reading not least for its analysis of horizontal rights and “in accordance with the law” provision in article 10 ECHR.  It is also notable that this was an injunction which sought to protect article 8 rights of clinical staff which operated to stop the parents from doing something which was not otherwise unlawful. The judgment did not address the question of whether the Trusts were a victim or could assert the Article 8 rights on behalf of their staff generally. Assuming the Court is right that it is able to prevent the parents naming staff members when they make public criticisms, even though doing so is not otherwise unlawful, this was classically a very difficult balance.  The parents’ concerns as articulated appear, on the face of it, worthy of investigation and history has shown that a media spotlight is often required to galvanise a proper investigation and uncover failings.  On the other hand, there was detailed and compelling evidence of the terrible effects of social media hounding which can occur regardless of any underlying merit in the concerns. It should be noted that in the present case, the court emphasised in its reasoning that the parents did not seek any factual findings that might support their case on public interest, which could then have added weight to their Article 10 rights.  It may be inferred from this that in other cases the parents must effectively convince a High Court Judge that their criticisms of treatment provided to a child is justified before they are allowed to name a doctor, almost a form of advance judicial approval.  This is a potentially significant development, not least given the unequal economic resources of NHS Trusts as compared to parents and could be seen as a form of gagging order which is ultimately not in the public interest. The courts are gradually having to grapple more often with the sometimes extensive and indeed devastating impact of social media on people’s lives and well-being, across a number of areas, not just this one. The award winning war correspondent Christina Lamb’s recent article in the Times is a vividly described example of the impact of such abuse.[2]  And yet of course there was no suggestion that such trolling or otherwise would be carried out by the parents themselves, but, as the court observed, once the information is in the public domain, it is in practice impossible to control the actions of others. I am confident that this will not be the last of these types of cases. Samantha Broadfoot QC Landmark Chambers 25 June 2021 [1] Represented by David Lock QC and Katie Williams-Howes [2] The Times, Saturday June 19, 2021 “Nothing could prepare me for the online war”. To subscribe to our Health and Social Care Insight and get the blog posts sent straight to your inbox, click here.

Download your shortlist

Download All Download icon