The Supreme Court addressed in two cases the incredibly sensitive intersection of parental rights and the right to privacy in cases concerning the withdrawal of life-sustaining treatment for a child.
Background:
This issue arose from the tragic cases of Zainab and Isaiah. Zainab Abbasi was born in 2013 with a rare and profoundly disabling neurodegenerative disease, a condition which was further complicated by lung damage as a consequence of her contracting swine flu in 2016. For most of her life, she was treated in a hospital under a mainly palliative treatment plan delivered by Newcastle-upon-Tyne Hospitals NHS Foundation Trust (NFHT). Both of Zainab’s parents are medically qualified, and they disagreed with the restriction in Zainab’s care plan to palliative care, considering that more active care would be appropriate. Matters deteriorated to the extent that the hospital sought to prohibit Zainab’s father from attending the ward.
The Newcastle Trust issued proceedings in the Family Division in August 2019 seeking a declaration that it was in Zainab’s best interests that life-sustaining treatment should be withdrawn. Unfortunately, Zainab died before the application was fully heard. An injunction was granted to prevent the identification of persons and institutions involved in the treatment and care of the child in question. The order was varied on 31 July 2020 by consent to permit naming the parties to the proceedings and the hospital where Zainab was treated, but it remained in force in relation to the names of the clinicians listed in the original order. Zainab’s parents remain critical of the care received by their daughter, which they regard as symptomatic of a wider dysfunction affecting the Trust’s paediatric intensive care unit. They wish to publicise their account of the treatment their daughter received, naming the relevant clinicians, so that they may bring about a more general investigation of the unit in the wider public interest.
Isaiah was born in February 2017. Due to clinical negligence, he suffered oxygen deprivation during birth, which led to grave damage to his central nervous system which resulting in a permanent dependence upon a ventilator to sustain life. King’s College Hospital NHS Foundation Trust (KCHFT) made an application in relation to Isaiah in August 2017, seeking a declaration that the withdrawal of life-sustaining treatment was in his best interest. On the 10th and 17th August 2017, the identities of Isaiah’s parents and the name of the hospital where Isaiah was being treated were reported in a newspaper. The KCHFT then sought an injunction preventing the publication of any material which might identify those who had cared for, or were at the time caring for, Isaiah or his mother. This was awarded.
The parents of the children concerned then applied, after their children had died, to be released from the restrictions imposed by the relevant injunction. They contended that the injunctions effectively silenced their voices and hindered the ability of mainstream media to report on these sensitive cases, should the parents' stories garner public interest. The High Court initially sided with maintaining confidentiality indefinitely, while the Court of Appeal (CoA) overturned the decision based on the rights of individuals to share their experiences publicly.
Decision:
The Supreme Court unanimously dismissed the appeal for reasons that differed from the CoA. The Court held that the clinicians’ cause of action to protect their private lives had to be asserted in a claim brought by the clinicians themselves. So the Court upheld the decision of the CoA to discharge injunctions protecting the identities of the clinicians and other hospital staff involved in the care of two children.
The Supreme Court was tasked with a delicate balancing act: weighing the Article 8 rights (the right to privacy) of the hospital staff against the Article 10 rights (the right to freedom of expression) of the parent. The Court noted that “… injunctions of the present kind should be of limited duration. It is reasonable to infer that the risk of harm to the child, the trusts, and the clinicians is likely to decline over time, from the moment when the proceedings end.” The consequences of restricting the parents’ freedom of expression are also likely to be much more enduring in their consequences.
Implications:
This case is significant as it shows the balancing of two fundamental rights in sensitive cases. This case might even signal a potential shift towards greater weight being given to freedom of expression once the immediate protective concerns for the child and medical professionals during proceedings have ceased.
Parents who have been subject to injunctions restricting their ability to speak about their child's care after end-of-life proceedings may find this ruling offers a pathway to potentially having their own restrictions lifted or challenged. The judgement also highlights that, while privacy concerns will be very important during the proceedings and immediately after, allowing parents to discuss their experiences could help them to grieve.
