Local Authority v Health Authority & Anor

A local authority may commission an inquiry into matters connected with its statutory social services functions, adapting Department of Health guidance where appropriate. Misdescribing an inquiry as a Part 8 review does not necessarily invalidate it.

The High Court may use its inherent protective jurisdiction to restrain publication that would harm children or adults under a disability. The court must balance their rights under article 8 of the Convention against the publisher’s article 10 rights, giving appropriate weight to freedom of expression. Publication may be restrained where the likely harm and intrusion are substantial and the proposed report is disproportionate to its legitimate public-interest purpose.

The local authority sought permission to publish Volume 1 of an extensive report commissioned after care proceedings concerning children who had lived in a large household with vulnerable adults. The report examined inter-agency working and contained detailed descriptions of the household, its residents and the events investigated.

The local authority relied on its statutory powers and the court’s inherent jurisdiction. Ms A, the Health Authority, an adoption agency and the Official Solicitor opposed publication. The principal objections concerned the report’s scope, its description as a Part 8 review, confidentiality, identification and the likely effect of publication on children and adults under a disability.

The issues were whether the inquiry was intra vires, whether the court had jurisdiction to restrain publication, and how the competing rights and interests should be balanced.

1. Statutory power. The local authority had power under the Local Government Act 1972, sections 111(1) and 137, read with the guidance obligation in the Local Authority Social Services Act 1970, section 7. It could commission an inquiry based on the Part 8 model and extend it to vulnerable adults. The repeated description of the inquiry as a Part 8 review was misleading, but did not make the inquiry ultra vires.
2. Ms A and other organisations. The inherent jurisdiction could not be invoked for the benefit of an adult without a disability, a Health Authority or an adoption agency. The circumstances did not justify extending the law of confidentiality or privacy in Ms A’s favour. Any interference with publication for her benefit would in any event have been disproportionate.
3. Children. The court had a protective, rather than custodial, jurisdiction to protect children from harmful publicity. The relevant exercise required a balance between article 8 and article 10 rights. The report was lengthy, emotive and focused on the household rather than providing an objective executive summary of inter-agency lessons. Publication would probably attract intrusive media attention and create a real and substantial risk of disruption and harm to the children’s care and welfare.
4. Adults under a disability. Following Re F (Mental Patient: Sterilisation) and subsequent authorities, the common law supplied a flexible protective jurisdiction where necessary to protect adults lacking capacity. The jurisdiction was not confined to medical treatment or declaratory relief. It could be used to protect welfare in relation to publication, with article 8 balanced against article 10.
5. Relief. The balance favoured protecting the children and vulnerable adults. The court refused to discharge the existing injunctions and ordered that Volume 1, in its present form, should not be published. It also granted a declaration and a negative injunction restraining publication for the protection of the adults under a disability.