Rashid Maqsood Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust

The High Court has jurisdiction in end-of-life proceedings to make reporting restriction orders protecting the integrity of proceedings and persons connected with them, including persons who are neither parties nor witnesses. That power does not require a separate cause of action while the court is seized of the underlying proceedings.

Whether an order should continue after proceedings end depends on an intense, fact-sensitive balance between articles 8 and 10. Indefinite anonymity cannot rest on generic evidence or systemic concerns about the health service. The court must assess the actual future risk to identified individuals, including its likelihood and consequences. Where that risk has become low and speculative, strong freedom-of-expression interests in discussion of matters of general public importance prevail.

These conjoined appeals concerned indefinite reporting restriction orders made during High Court end-of-life proceedings involving two children. The orders protected, respectively, four clinicians involved in one child’s care and a broad, undefined class of staff involved in the other child’s birth, treatment and end-of-life care.

After the children’s deaths, their parents sought to speak publicly about the treatment provided and to identify staff. The President of the Family Division dismissed their applications to discharge the orders: [2021] EWHC 1699 (Fam). He considered that the risk of third-party harassment, and wider effects on NHS staff and services, outweighed the parents’ rights under articles 8 and 10 of the European Convention on Human Rights.

The central issues were whether the High Court had jurisdiction to maintain the orders and whether the present circumstances justified their indefinite continuation.

1. Appeals allowed. The reporting restriction orders were discharged, subject to a stay pending any application for permission to appeal or further order. The High Court had jurisdiction under its inherent jurisdiction and section 37 of the Senior Courts Act 1981 to make reporting restriction orders in end-of-life proceedings. Its power extended to persons affected by or connected with the proceedings, including non-parties and non-witnesses. No distinct cause of action was required while the court was seized of such proceedings.

2. The jurisdiction had to be exercised compatibly with Convention rights. Applying Re S [2004] UKHL 47, articles 8 and 10 had no hierarchical priority. The court had to focus intensely on the particular rights claimed, the justification for restricting each right, and proportionality. The word “compelling” did not create a separate legal threshold, but reflected the weight ordinarily required to justify curtailing legitimate freedom of expression.

3. The President had erred by treating generic evidence of harassment, staff morale, recruitment and hospital functioning as decisive. Article 8 did not protect clinicians from criticism unless it seriously interfered with private life and personal integrity. A future risk relied upon to restrict expression had to be objectively well founded. Its nature, likelihood and consequences required close examination. Here, the evidence showed no continuing harassment after the hospitals had become identifiable. Any serious secondary activity following publication was speculative, so the remaining article 8 interests carried limited weight.

4. The parents’ article 10 interests were strong. They had sufficiently identified concerns about their children’s treatment, birth and deaths. They wished to contribute to public debate on ethical and clinical issues of clear general public interest. They were not required to provide proposed publication copy or obtain prior approval before relying on article 10.

5. Reporting restrictions may be essential during volatile end-of-life proceedings. Indefinite orders are different. They require clear, individualised evidence and intense scrutiny. A judicial practice of permanent class anonymity, divorced from individual circumstances, would create a controversial new restriction on open justice and free expression which was a matter for Parliament, not the courts.

• Court of Appeal (Civil Division): Allowed the parents’ appeals and discharged both reporting restriction orders: [2023] EWCA Civ 331.
• High Court, Family Division: The President dismissed the parents’ separate applications to discharge the orders: [2021] EWHC 1699 (Fam).