From Mental Health Law Online
Reporting-restriction orders and non-contact injunctions.
- Re M; W v M (2011) EWHC 1197 (COP)
Family Law Week have kindly given permission for the following summary to be reproduced (link below):
M is an adult patient who suffers from brain stem encephalitis. She was represented through the Official Solicitor in an application brought by family members to seek declarations that she lacks capacity to make decisions as to her medical treatment and that it is not in her best interests for artificial nutrition and hydration to be provided. An issue arose in the proceedings as to the extent of the reporting restrictions that should be put in place.
The issues in this case were settled largely by consent. Baker J. proceeded to give some general guidance on the substantive and procedural matters that had arisen. This guidance can be summarised as follows:
1. The general rule is that hearings in the Court of Protection should usually be held in private: r.90(1), Court of Protection Rules 2007. However, r.92(1) provides for the court to make an order for all or part of a hearing to be heard in public or excluding any person or class of persons for attending a public hearing or a part of it. The Court must be satisfied that there is 'good reason' for making an order under Rule 92: Independent News Media v A  EWCA Civ. 343.
2. The Court may also impose reporting restrictions, to include restrictions on publication of the identify of any party, protected person, or witness including information that may lead to any such person being identified: r.92(2), Court of Protection Rules. Applications to the Court that relate to patients with serious medical conditions will normally be heard in public but with reporting restrictions in place: Practice Direction 9E, para. 16.
3. Until different guidance is provided, the form of the order should follow the model in the President's Direction and accompanying Practice Note issued by the Official Solicitor and the Deputy Director of Legal Services, CAFCASS, dated 18 March 2005.
4. The legal test for making reporting restriction orders in the Court of Protection involves the balancing of rights under Article 8 (respect for private and family life) and Article 10 (freedom of expression). Practice Direction 13A makes it clear that neither of these Articles takes precedence over the other. When conducting this balancing exercise, the court applies the four well-known propositions identified by Lord Steyn in Re S (A Child) (Identification: Restriction on Publication)  UKHL 47 at paragraph 17:
"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. For convenience I will call this the ultimate balancing test".
A number of further points arose concerning the balancing of Convention rights in these applications. Firstly, Baker J. makes the point that these cases may also engage rights under Article 6, where, as here, there is a suggestion that publication of information relating to the proceedings or the media seeking to contact family members may affect the capacity of a party to participate in the proceedings.
The Article 8 rights of family members, in addition to those of the protected party, must also be considered as part of the balancing exercise undertaken. When considering the Article 8 rights of any individuals, the Court must look at the nature and strength of the evidence of the risk of harm.
The public interest in freedom of expression arising in serious medical cases will usually lie in the general issues in an application for an order that may lead to the shortening of a life, as opposed to the identity and personal circumstances of the protected person. However, the Court must bear in mind that it is in the public interest for the practices and procedures of the Court of Protection to be understood.
Finally, Baker J. makes the point that although a case such as this considers the same human rights as the so-called superinjunction cases, the balancing exercise will invariably be different in the Court of Protection because of the circumstances of those whom the Court is seeking to protect.
Baker J. then went on to consider the balancing exercise to be conducted in this case. He found that the balance manifestly fell in favour of granting the orders sought by the applicant and the Official Solicitor. The terms of the order that had been agreed would protect the Article 8 rights of the family members but would not prevent the press from reporting on the issues, evidence and arguments at the final hearing in July.
 All ER (D) 08 (Jun)
Sally Gore, 'Re M (2011) EWHC 1197 (COP): Reporting restrictions in Court of Protection proceedings: general guidance given as to the substantive and procedural issues arising' (Family Law Week, 19/5/11)
Martin Beckford, 'Secrecy fears after court bans contact with 65 people' (Telegraph, 19/4/11). Hedley J permitted the press to attend hearings in this case (see previous article); this article complains about the press being ordered not to communicate with witnesses or healthcare professionals (except via the applicant's solicitor) and not to enter within 50 metres of their addresses.
See Settled cases and forthcoming judgments under the heading 'Re M' for further press articles.