R v Secretary of State for Justice

Under rule 39.2(4) of the Civil Procedure Rules 1998, anonymity in civil proceedings concerning compulsory mental health powers is neither automatic nor presumed. The court must decide whether non-disclosure is necessary to protect the patient’s interests. It must balance open justice and public identification against therapeutic confidentiality, safety, access to independent review and harm to rehabilitation.

Public scrutiny can remain effective through an open hearing even when the patient’s identity is withheld. Anonymity is justified where identification creates a real risk of undermining treatment or successful reintegration, but each case requires its own balance.

The appellant, a life prisoner transferred to psychiatric hospital under the Mental Health Act 1983, sought judicial review of the Secretary of State’s refusal to permit unescorted community leave. Cranston J dismissed the substantive claim in [2014] EWHC 167 (Admin). He also refused to preserve the appellant’s anonymity, although he protected the identities of the hospital and its staff.

The Court of Appeal dismissed the appeal concerning anonymity in [2014] EWCA Civ 1009. The existing order nevertheless remained in force pending the appeal to the Supreme Court. Before the Supreme Court hearing, the appellant was released on life licence under arrangements intended to support rehabilitation, including a requirement to change his name.

The questions were whether civil proceedings concerning compulsory psychiatric powers should carry a presumption of patient anonymity and whether anonymity was necessary on the particular facts.

1. Appeal allowed unanimously. Lady Hale, with whom Lord Clarke, Lord Wilson, Lord Carnwath and Lord Hughes agreed, held that anonymity was necessary in the appellant’s interests. The existing anonymity order was maintained.

2. Open justice has two aspects: proceedings ordinarily take place in public, and the identities of the participants ordinarily become public. The second aspect enables the media to communicate proceedings in a form that attracts public attention. Agreement between the parties cannot relieve the court of its responsibility to assess the competing interests for itself: In re Guardian News and Media Ltd [2010] UKSC 1.

3. Proceedings concerning compulsory psychiatric detention, care and treatment differ materially from ordinary civil litigation. The tribunal system and the Court of Protection generally protect patient identities. Their work involves confidential clinical information, vulnerability and assessments of risk as well as medical diagnosis. The Court of Appeal had therefore been wrong to dismiss the analogy with those jurisdictions and the historical treatment of patients recognised in Scott v Scott [1913] AC 417.

4. The governing question under rule 39.2(4) of the Civil Procedure Rules 1998 is whether non-disclosure is necessary to protect the patient’s interests. There is no presumption that anonymity must be ordered in every such case. The court must balance the public’s entitlement to know the principal actors, particularly where notorious offending is involved, against the potential harm to treatment, therapeutic trust, safety and rehabilitation. It must also consider the chilling effect that prospective publicity may have upon clinical candour and upon a patient’s willingness to challenge a continuing deprivation of liberty.

5. The public interest in scrutiny of decisions about dangerous patients remained important, but it could substantially be protected through a public hearing at which the evidence and arguments were known. Here the clinician’s evidence, the recognised safety risk, the arrangements for a change of name and the appellant’s recent release showed a very real risk that identification would jeopardise his therapeutic progress and successful reintegration. The circumstances anticipated in R (M) v Parole Board (Associated Newspaper Ltd intervening) [2013] EWHC 1360 (Admin) had arisen. The balance therefore made anonymity necessary.

• United Kingdom Supreme Court: The court unanimously allowed the appeal from [2014] EWCA Civ 1009 and maintained the anonymity order.
• Court of Appeal: The court dismissed the appeal concerning anonymity in [2014] EWCA Civ 1009. The existing anonymity order remained effective pending the appeal to the Supreme Court.
• High Court: Cranston J dismissed the substantive judicial review claim in [2014] EWHC 167 (Admin). He refused anonymity for the claimant but protected the identities of the hospital and its staff.