Should doctors be publicly identified after court proceedings about ending life-sustaining treatment for gravely ill children?
The Supreme Court has finally determined the law on whether clinical staff involved in cases about ending life-sustaining treatment for gravely ill children can be publicly named after court proceedings.
The Supreme Court heard the case of Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust UKSC/2023/0052 and a case known as Haastrup in April 2024, and after a year of deliberating it dismissed the appeal of the NHS Foundation Trusts, determining that the reporting restrictions injunction orders should be lifted.
This means in the first instance when cases about the withdrawal of life-sustaining treatment for children end, after a ‘cooling off’ period, people who treated the child can be named publicly. However, there can be exceptions as will be explained.
Background to the issue
The sad context of this case is the death of the children Zainab and Isaiah.
Both children were the subject of court proceedings in which the court was asked by their hospital trusts to make declarations that it was lawful and in their best interests to withdrawal life-sustaining treatment.
Their parents sought the continuation of treatment.
Zainab died a few days before the substantive court hearing was due to take place and Isaiah died after the removal of ventilation following a court order that it was in his best interests to withdraw treatment.
The debate around whether or not to withdraw life-sustaining treatment
When cases like Zainab and Isaiah’s come to the court, public interest and debate are often sparked. In some circumstances this has escalated.
The cases of Charlie Guard and Alfie Evans are often cited to point to the adverse impact that publicity around end-of-life cases can have on members of the treating team and hospital.
However, those impacted by these injunction orders often feel unjustifiably silenced and consider that the public are being preventing from having important information.
There's a legal balance to be struck between protecting the freedom of expression rights we all enjoy and protecting the private lives of the clinicians.
What the Supreme Court considered
The decision before the Supreme Court was whether after court proceedings have concluded, there should continue to be injunctions around publishing of information which would identify the child, their family and those who cared and treated them. These injunctive orders are commonly referred to as reporting restrictions orders.
In both case there were reporting restrictions orders which prohibited the publication or broadcast of any information which would lead to the identification of a range of people involved in court proceedings and treatment of the children.
The restrictions in Isaiah’s case were particularly far reaching in that they included a large class of clinical and non-clinical staff, the scope of which was also not entirely clear.
In Zainab’s case there was a list of clinicians who the injunction applied to and the trust, hospital, child and parents could be identified. Zainab and Isaiah’s parents wanted the restrictions lifted so that they could tell their story and be free to name and raise concerns regarding members of their children’s clinical teams.
What the Supreme Court found
The Supreme Court identified restrictions could be in place for the following reasons:
- To protect the interests of the child being treated and/or the administration of justice (using the court’s inherent parens patriae powers and inherent jurisdiction).
- To prevent interference with hospital trusts’ performance of their statutory functions (as in the case of Broadmoor).
- To protect the rights of the clinicians and other hospital staff, for example from defamation and harassment, where it is demonstrated there is a real risk of such wrongful conduct (by a cause of action in tort, in particular the tort of invasion of privacy).
The court anticipated injunctions during the proceedings are likely justified but they concluded the injunctions should be of limited duration.
The duration suggested would be until the end of proceedings and then after a ‘cooling-off period,’ which requires assessment of the risks of interference with the trust’s performance of its statutory functions (e.g. treating patients) and time for the clinicians to take advice about their personal rights. Helpfully the court noted this period would likely be weeks rather than months or years.
During that period a clinician can decide whether they seek further protections for themselves. They would be expected to make the application in their own name rather than under the name of the hospital trust, though it was recognised that the hospital’s legal team would be well placed to assist them with this.
The clinicians would need to ‘convincingly’ demonstrate that there should be continued restriction of freedom of expression which is protected under Article 10 of the European Convention on Human Rights. They added ‘a permanent restriction would require compelling circumstances.’ In Zainab and Isaiah’s cases the court did not consider there were sufficiently compelling reasons.
Conclusion
The judgment importantly recognises that hospital staff are public figures and there is a public interest in the treatment of patients. It can be concluded that bringing court proceedings for the withdrawal of life-sustaining treatment doesn't grant doctors protections they wouldn't otherwise have.
Given the massive influence of social media, it was this issue rather than the press or the parents, who the trusts are often concerned about. The challenges faced by the power of social media continues to impact our lives daily.
However, on this occasion it has fortunately not resulted in a counter-productive chilling effect of silencing parents faced with the devastating circumstances of grieving for their children, after what are traumatic court proceedings.
Find out more about Irwin Mitchell's expertise in supporting families concerned about whether or not to continue life-sustaining treatment at our dedicated healthcare and medical treatment disputes section.
