By Celia Kitzinger, 1st April 2021
Previous blogs – and the mainstream media – have reported that RS ( the person at the centre of a ‘right to die’ case) was Polish, that the members of his family who wanted life-sustaining treatment to continue are Polish, and that the Polish government was seeking his return to Poland in order to remove him from the jurisdiction of the English Court of Protection: see the blog posts by Jenny Kitzinger (here) and Alex Warren (here).
This information was very nearly prevented from being in the public domain by a proposal that reporting of the nationality of RS and his family should be prohibited. (It was suggested at one point that ‘European’ could be substituted for ‘Polish’.)
At virtually every Court of Protection hearing, counsel have prepared an injunction that prevents members of the public from reporting certain information revealed in court. If we disobey this injunction (which goes under the rather Orwellian name of a ‘transparency order’), we may – as we are told on the front page of the standard document – “be found guilty of contempt of court and may be sent to prison, fined or have [our] assets seized“. This is sufficiently terrifying to some observers that they flatly decline to write blog posts for this Project for fear of inadvertently breaching some aspect of this injunction, which is written in a style impenetrable to most non-lawyers. (For more information about transparency orders and what they mean, see my earlier blog post here.)
The purpose of the transparency order is to protect the person at the centre of the case (“P”). People are prevented from naming P or P’s family and from communicating by any means (orally, in writing, electronically via social media or in any other way) information that “identifies or is likely to identify” that P is the subject of Court of Protection proceedings, that anyone is a member of the family or friend of someone subject to court proceedings, and any information that identifies or is likely to identify where P or their family and friends live, or are being cared for, or their contact details. The transparency order also usually covers the health and social care staff caring for or treating P – but not the names of any independent experts involved in the case.
This ‘standard’ transparency order can be varied. Sometimes family members ask the court to permit identification of P – and themselves – because they believe P would want to have their name used in support of a campaign for better treatment or human rights of people like them. I watched one hearing where the judge listened to P’s husband argue the case that his brain injured wife, Michelle Davies, would want to lend her name to the cause of ending the “inhumane restrictions” to visiting loved ones in care homes during the pandemic. He “believes strongly that Michelle would want for something positive to come out of this dreadful situation that she finds herself in and this case presents an opportunity for that to happen”. And so, in that case, the transparency order was varied to permit Michelle Davies’ name to be used (and I blogged about it here).
In other cases, the ‘standard’ transparency order is varied to make it more restrictive: in some cases I’ve been told that it’s not permitted to give P’s exact age, or to refer to an aspect of their behaviour (e.g. sexual practices) or identity (e.g. that they are transgender). Sometimes we’re not allowed to name the public bodies involved – typically, the Trust, the local authority or the Clinician Commissioning Group. This was the case in a hearing attended by several observers, and by the PA journalist, Brian Farmer. It concerned a woman with severe learning disabilities who’d been raped and was pregnant: the Trust had applied to court for authorisation of a Caesarean section (which was granted). You can read about the case in the blog by Adam Tanner who observed the hearing, and in the judgment (here). Obviously the identity of P and her family were covered by the transparency order, as is standard practice. Unusually, though, the names of the NHS Trust and Local Authority responsible for P’s care, as well as the name of the police force investigating her rape, were also covered by the transparency order.
The journalist, Brian Farmer challenged this extension of the transparency order, and he helpfully contributed a blog post (here) which provided a model letter to the judge about why Article 10 rights to freedom of information and freedom of expression should – in the facts specific to this case – trump P’s Article 8 rights to privacy (which were not really at risk in this case, according to Brian Farmer). As I wrote in my introduction to that blog post: “We have reproduced Brian Farmer’s letter here (with his permission) because any of us may in future want to challenge reporting restrictions in the Court of Protection and his arguments are ones we can all learn from.“
And so, when, on the first day of a two-day hearing, I found myself listening to a discussion between the judge and counsel about whether or not P’s nationality should be covered by the transparency order, I felt able – thanks to Brian Farmer – to intervene to try to ensure that we were not prohibited from reporting this information.
What follows is the letter I sent to the judge, Mr Justice Cohen, before the start of the second day of the hearing, questioning the necessity and appropriateness of preventing the identification of Poland as the country from which RS and his family originate and which was seeking his return.
A letter to the judge
31 December 2020
CoP Case No: 13684602 – transparency order
I write on behalf of the Open Justice Court of Protection Project of which I am co-director. We are a citizen journalism initiative aiming to enhance and support transparency in the Court of Protection by observing and reporting on hearings via our blog (here).
I would respectfully argue that the proposed revision to the existing transparency order to cover P’s nationality makes it too wide. There was no restriction on reporting P’s nationality in the transparency order dated 26 November 2020 (sent to me on 15th December 2020). I believe it to be in the public interest that we should continue be allowed to identify the nationality of the person at the centre of this case. My reasons are set out below.
1. I did not hear any evidence in court that revealing P’s nationality might cause harm to him or to his family such that his Article 8 right to privacy about this aspect of his identity should override the Article 10 public interest right to freedom of information.
It is unusual for a judge to restrict reporting when none of the counsel who addressed you on the matter on 30 December 2020 argued for a reporting restriction on this matter – and two of them argued against it. None gave evidence about the risk of identification. According to the census of 2011 (the most recent I can find) the population of Plymouth [University Hospitals Plymouth NHS Trust had been publicly identified as the responsible Trust] is 264,200 and the most common language spoken (after English) is Polish (0.9% = 2,307 people) (http://localstats.co.uk/census-demographics/england/south-west/plymouth). The fact that he’s male, married, middle-aged and has [number deleted since it is covered by the revised transparency order] children obviously narrows the field and I accept it is possible that he might be identified as a result. I have also heard his wife say (via her translator) that she does not want the family to be identified as Polish – but her reasons were not provided in open court. My understanding is that if the court is to restrict reporting of an aspect of P’s identity there should be compellingly important reasons (such as evidence of the risk of harm to P and/or to his family, and how that harm will arise) sufficient to override the public interest in access to this information.
2. P’s nationality is already in the public domain in both English and Polish language publications – including newspapers, blogs, and social media such as Twitter and Facebook. Please see Appendix for a sample located via a quick google search. The Life Site News articles have been re-posted on Facebook and Twitter more than 1000 times since 24th December 2020. The article “Dying for a Drink” has had 102, 513 reads. As counsel said, “the cat is out of the bag”. As Mr Justice Eady has put it:
“The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutal fulmen. It is inappropriate for the Court to make vain gestures” (para 34 Mosely v News Group Newspapers Ltd.  EWHC 687 (QB))
3. It is in the public interest to receive correct factual information about the case, and for members of the public to have the opportunity to engage with a wide range of perspectives on a key matter of public concern.
The proposed transparency order prohibiting publication of anything which identifies or risks identifying P’s nationality would impede that because it would mean we cannot quote and challenge any publications which refer to P’s nationality – because to do so would link our commentary on the case with articles identifying P’s nationality and hence run a high risk of revealing his nationality to our readers. This is of particular concern because, to date, the publications that mention P’s nationality appears to originate from (and often link to) the Life Site News articles, which are written from a ‘pro-life’ religious perspective and also contain inaccuracies. It is in the public interest for us to be able to challenge the factual and legal inaccuracies that have appeared concerning this case.
The Open Justice Court of Protection Project would like to publish blogs about this case which offer a different perspective – including one from a media studies specialist analysing publications about this case to explore the way in which religious perspectives present law and ethics (impossible if she cannot quote from publications mentioning his nationality). I note that many of these publications are very critical of P’s wife for the position she has taken in supporting the decision to withdraw CANH: that is, unfortunately, a harm that has already befallen her and it is important that the public are offered alternative analyses on the role of relatives who support treatment withdrawal: this is a key area of my research expertise in the Coma and Disorders of Consciousness Research Centre and something I have published about widely in academic journals.
We would also like to be able to respond to online publications to challenge the narratives about death following withdrawal of clinically assisted nutrition and hydration. I was one of the lead authors of the National Guidance on Clinically Assisted Nutrition and Hydration). Decisions about withholding and withdrawing life-sustaining treatment will always be of enormous public interest and concern.
Insofar as the proposed transparency order will restrict and prohibit our engagement with other members of the public and (social) media outlets due to the fact that they are referring to P’s nationality, this stifles the public debate so crucial to the promotion of transparency and open justice in a democratic society.
4. It is difficult to report on a key part of the cross-examination of Professor Pullicino without referring to the Life Site News article about which he was cross-examined (which reveals P’s nationality).
It is in the public interest (and enhances understanding and respect for the rule of law) for the public to understand how the court uses expert witnesses. The Open Justice Court of Protection Project has previously addressed this (e.g. “When Expert Evidence Fails”) and would expect to do as part of our coverage of the current case. I have considered how it might be possible to write about this part of his cross-examination without explicitly referencing the article containing reference to P’s nationality, and although this would be possible, there is an obvious “risk” that anyone reading it would be able to use a google search facility to identify the article concerned and might then read it and discover P’s nationality. Professor Pullicino was cross-examined about whether or not he believed that withdrawal of CANH from P was “euthanasia” (a term in the title of the article) and about the date on which he carried out the FaceTime conversation with members of P’s family (either the 24th or the 25th December 2020, which related to a claim made in the article). It is not difficult to see that, in conjunction with other information about the case, an averagely competent google search would readily locate the article. The only way in which this risk could be avoided would be to omit key parts of the cross-examination. There has been, to my knowledge, no evidence presented in court to justify restricting the public’s Article 10 rights to write about and to read about this cross-examination in a public court of law.
5. There is a public interest in open discussion and debate concerning the operation and strategies of the cross-national ‘pro-life’ religious organisations.
This discussion is significantly constrained if mention of Poland is prohibited. The media has already discussed the investment of both Poland and Italy in ‘right to life’ court hearings in the UK (“Why are Italy and Poland so invested in baby Alfie case?”, Express, April 26th 2018) and the BBC reported that the President of Poland, Andrzej Duda, tweeted “Alfie Evans must be saved”. Reports of the current case have explicitly made the connection with the Alfie Evans case (e.g. referring to Lady Justice King – one of the judges who denied permission to appeal in this case – as someone “known for her role in the state-sanctioned killing of Alfie Evans” and Bruno Quintavelle, who apparently has some formal role in the current hearing, acted for Alfie Evans’ family. The role of the Christian Legal Centre and its cross-national links (especially with Poland) is exemplified in this case which involves the intervention in a UK court in the form of submissions from the Polish Ministry of Justice and the Polish Ministry of Foreign Affairs, plus oral interventions in court from the Polish Embassy. The public has a right to know that Poland is involved in this way (again) in the UK courts, and the connections with the cross-national ‘pro-life’ religious movement.
Given these matters of weighty public importance, I would like to invite the court to reconsider whether there is sufficient evidence of risk of harm caused to P (or his family) by breach of his Article 8 rights of privacy to justify restricting the public’s Article 10 rights to freedom of expression and freedom of information in this way.
Co-Director, Open Justice Court of Protection Project
Permitting reference to Poland
By the end of the first day, it had seemed to me very likely that the judge would prevent identification of Poland in the amended transparency order – and that’s why I wrote my letter.
My letter was discussed at the beginning of the hearing the following day. Counsel for the Official Solicitor spoke in support of the view that Poland should not be identified, due to concern that RS’s wife and children would then be readily identifiable. Counsel for the birth family took the position that Poland should be identified. Counsel for the Trust expressed the view that, given previous media reports that RS was Polish, “that bird has already flown“.
In the end the judge took the view that “I am persuaded that I think I have to allow publication of the nationality“. The arguments he seemed to find most persuasive were “the involvement of Dr Pullicino and the sources of information that he has gone to to get information about the case” (to which he intended to refer in his judgment, meaning that publications identifying RS as Polish would be easily traceable); and the fact that the Vice Consul of the Polish Embassy had addressed him: “so I think things have moved on and I think it is now proper that I should permit reference to the country involved“.
In an effort to protect RS’s identity and avoid ‘jigsaw identification’, he then ordered that although his nationality could be reported, the number of children he has should remain confidential. Counsel pointed out that the number of RS’s children had already been reported in a Court of Appeal judgment, published on BAILLI (Z v University Hospitals Plymouth NHS Trust & Anor (Rev 3)  EWCA Civ 1772 on 23 December 2020. The court arranged for that judgment to be removed from BAILLI, edited to delete reference to the number of RS’s children, and reposted.
While the number of children RS had fathered was pretty much irrelevant to the key issues in this case, it would have been very difficult for all of us who observed this hearing and have blogged about it for this Project do so in the terms we have if there had been a prohibition on saying anything that “identifies or is likely to identify” the nationality of P and his family. As I said in my letter to the judge, given the weighty matters involved, that would have been an unjustifiable breach of the public’s rights to freedom of information.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia