Regular readers will be aware of my long standing interest in the Court of Protection. It was the Stephen Neary case, first published here, which opened the door to the ‘Transparency Pilot’ and the admission of the media to hearings of the Court of Protection – with several provisos.
Not the least of which was respect for the vulnerable nature of the people whose lives were under discussion and who were not able to decide for themselves whether they wished the public to know every last detail of their problems. Hence, normally, cases were anonymised.
However, equally normally, the purview of the Court of Protection (COP) ended with the death of the ‘patient’, as those whose affairs are discussed by the court are known.
Today, Mr Justice Charles has handed down a judgement requesting anonymity for a patient long after death. He has done so, both as a sitting judge in the COP and ‘as a High Court’ Judge. It is likely to have far reaching implications for the media.
The ‘Transparency Pilot’ came into being as part of the drive to open up the Family Courts in general to public view – ‘Justice must be seen to be done’ – without losing sight of the fact that these people were not in any sense criminal; they did not deserve to have their private affairs trawled over by a prurient public.
Re Kings College Hospital NHS Foundation Trust v C & V  EWCOP 80 was just such a case. ‘C’ was, as was her right, providing she had full mental capacity, refusing medical treatment for a serious condition. Her Doctors at Kings College Hospital naturally wanted a declaration that she did have the mental capacity to make such a decision.
Mr Justice MacDonald decided that she did have full mental capacity and that her decision was valid. An anonymised account of the reasons behind that decision was published a few days later. She died a matter of four days later, to the great distress of her family. In the normal course of events, the reporting restrictions would have lapsed with her death.
The fact that a court had agreed that ‘C’ was perfectly entitled to refuse further medical treatment, even though it would lead to her death, would barely have occupied a half inch of column space, if that – indeed, there was one lone Press Association reporter present – were it not for the fact that the court had had to hear evidence as to why she had made her decision. That evidence was reflected in the anonymised transcript.
That evidence contained buzzwords – clickbait – to thrill the soul of any tabloid reporter. I don’t intend to repeat them here. The media scrambled to attention.
In the Guardian, a columnist criticised the evidence of C’s family, and its acceptance by the court.
As a consequence, the solicitor of the one member of ‘C’s family who had attended the hearing received ’24 press enquiries’. Another relative heard from 40 friends and acquaintances who had been approached by journalists.
The family made an application to the court to have the reporting restrictions extended. They had not only lost an important member of their family in distressing circumstances, but 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 V, G and A).
V and G were adults; but C’s youngest daughter, A, was a teenager who was already suffering from fragile mental health which had manifested itself in her physical conduct. The suicide attempt of her mother and her subsequent refusal of life-sustaining treatment despite A’s request to her to accept treatment, with which A had a direct and stressful involvement, have understandably had an appalling impact on A’s emotional and psychological wellbeing.
At around 5.30 pm on Wednesday 2 December 2015 a reporter from the Daily Mail went to the home of A’s father (an ex-husband of C) where A lives. A answered the door and without saying who she was the reporter asked to speak to her father using his name, V asked who she was and was told that she was a journalist from the Daily Mail, A’s father came downstairs and the journalist asked if he would talk to her about his ex-wife. He refused and the journalist left.
That episode was all of four days after her Mother had died. That evening:
a reporter from the Mail on Sunday was asking questions about C in one of the pubs in the village where A and her father live. This was reported to V by friends in the village.
They were not alone:
More generally, the evidence indicates that on unspecified dates (a) the Daily Mail and the Sun contacted C’s third ex-husband in America, and (b) a journalist went to see the husband of the housekeeper of flats where G had once lived seeking G’s current details on the basis that he was writing a memorial piece about G’s mother and was sure that G would want to speak to him. During his visit he opened C’s Facebook page.
As a consequence of this activity, the media, the same media who complained bitterly about ‘Britain’s’ secret courts’ and demanded admission to them, came up with the following headlines:
“Voluntary death. “The socialite allowed to die at 50 rather than grow old had a narcissistic disorder, doctors said. A court ruling blocked her identification. Page 7”….Page 7 contained the edifying headline “I won’t become an old banger” accompanied by pixilated photographs.
The Daily Mail went with:
“Revealed: Truth about the socialite who chose death over growing old and ugly and the troubling questions over a judge’s decision to let her do it”.
The Sun excelled with:
“Mum who fought to die was “man eater obsessed with sex, cars and cash”.
Accompanied by two pixelated photographs of C at a younger age each showing her with a drink in hand. In one in which she is wearing a low-cut party dress and in the other she is raising her skirt – they appear to be the same clothing in pictures published in the other papers.
Mr Justice Charles opinion of this coverage was that:
I am satisfied that […] V and G are correct in asserting that much of the publicity was precipitated not only by a wish to report and comment on the bases on which the Court reached its decision but also to attract prurient interest in their mother’s sexual and relationship history.
The media cared nothing for the distress of the two adult children, nor for the fragile mental health of ‘C’s teenage daughter. At the hearing on 9th December 2015 to extend the reporting restrictions – somewhat after the ‘horse’ had bolted – the media lawyers ‘did not recognise that some of the media attention had caused significant distress to C’s family, or that identification of C would or would be likely to cause further and heightened distress to C’s family and a risk of serious harm to A’.
Four months later, after they have had their column inches, they say this was only because they hadn’t had ‘time to consider the Applicant’s evidence prior to the hearing’ – not that they mentioned that at the time….
Now they have reconsidered. Now they think there should be reporting restrictions – but only until the youngest daughter is 18. The Daily Mail made the following statement to the court:
The Daily Mail considers it has a duty to the public to report fairly and accurately on what happens in the courts. In order to engage the interest of members of the public in the kinds of issues the court decides, it is however necessary to publish articles and reports that people actually want to read. That means telling our readers about the facts of the cases, including the real people and places involved, and sometimes publishing pictures that relate to these people and places.
Mr Justice Charles responded that:
When cases engage issues of such high public importance and interest I am unpersuaded by Mr Steafel’s assertion that anonymised reporting of them would become “arid and academic philosophical debates” and “would not engage the public in any meaningful way”.
So, we have another injunction – and quite right too. The chidlren do have a right to privacy, and not to be the subject of lurid coverage through no fault of their own – nor their Mother’s. It was the wish of Kings College doctors to be sure of their legal standing that brought her private life into the public domain – not any action of hers.
An interesting result given that PJS v News Group Newspapers Ltd  EWCA Civ 100 is due to receive a decision one day this week.
Was it really impossible for the media to cover a case of ‘the right to refuse medical treatment’ without giving us the low down on a much loved Mother’s previous sexual history? Do we really need to know the intricate details of PJSs sexual shenanigans? Is that what a free press is for?
‘What about the children’ is a reasonable argument sometimes when you weigh their mental health against the right of the public to ‘read whatever they want’.
What think you?
Those who want to read the full transcript will find it here.