By Brian Farmer and Celia Kitzinger, 3rd November 2022
This is unusual. the default position in the Court of Protection is that the protected party is referred to as “P”, or by initials like “SN”, “RT”, ‘AB” etc, so that their identity is not public knowledge.
Reasons for naming someone depend on the individual circumstances of each case. Sometimes it’s because the person wants (or would have wanted) to be publicly named, because they’re a political figure and a campaigner (e.g. Manuela Sykes). Others are reported by their families to want to help others by having their experience shared in the media – like Robert Bourn and Michelle Davies, both of whose stories have appeared on national television. Sometimes they are publicly named in order to draw attention to their own situation and get help – like Steven Neary, whose father Mark Neary turned to the media out of desperation to get support and guidance. For William Verden, naming him was in order to maximise the chance that someone would donate him a kidney.
This is about a case where (although the family, and it is said the protected party herself, also wanted her name to be used) the application to name her focused on the problem of “jigsaw identification”. Basically, this refers to a problem that arises in reporting cases where the salient facts are such that a meaningful report is likely to enable readers to identify the person at the centre of the case, even without naming them.
Introduction by Celia Kitzinger
Brian Farmer, the only journalist regularly to observe Court of Protection hearings, was in court (as was I) to observe a case before Mr Justice Cobb on 18th August 2022.
It concerned a woman in her 30s with autism and what was described as “a hugely complicated medical background”. She was in hospital on a High Dependency ward, intubated and mechanically ventilated. There were disputes about her treatment (although it wasn’t clear quite what those were) and there was an “extremely difficult relationship” between the Health Board and her parents.
Her parents were in court as litigants in person (i.e. without lawyers to represent them). Both were medically trained. Her father had been a consultant anaesthetist in the very hospital where his daughter was now a patient. Her mother was an ICU nurse.
I have blogged about this case previously: “I am fearful for my daughter’s life”: Serious medical treatment in a contentious case“.
This blog is not about the substantive issues concerning treatment but about the right of observers (me and Brian Farmer) to report on the hearing, and to ensure the public know about it.
In order for that to be possible, Brian Farmer applied to the judge to “vary the transparency order”.
What is meant by “varying a transparency order”?
A “transparency order” is an injunction that is supposed to be served on everyone who attends a public hearing in the Court of Protection.
It’s a court order which says, at the beginning: “If any person disobeys the order … they may be found guilty of contempt of court and may be sent to prison, fined or have their assets seized. They have the right to ask the court to vary or discharge the order”.
The ‘standard’ transparency order is made to protect the privacy of the person at the centre of the case. Although their name and the names of their family members are usually used publicly in court, it’s very rare that anyone is allowed to report them. Usually, we can write about the case, explain the issues before the court, and quote what was said – so long as we don’t say or write anything “that identifies or is likely to identify” the person at the centre of the proceedings or their family (and, often, nothing likely to identify the carers either).
Here’s what the relevant paragraph of the injunction says about the information we’re not allowed to communicate. (The whole order consists of 17 paragraphs plus an Annex, over seven pages of legal language.)
So, we’re not allowed to report that LW (the woman at the centre of the case) is involved in a Court of Protection case (that’s 6(i)(a)).
Nor are we allowed to say anything likely to identify her family members (“CW” and “EW” are her parents) (that’s 6(i)(b)); or her care team (6(i)(c)).
And 6(ii) prevents reporting anything likely to identify where any of those people lives, is being cared for, or their contact details.
This is the sort of order that we see a lot in the Court of Protection.
It’s designed to support transparency and open justice in the Court of Protection (the public’s Article 10 rights to freedom of information and the long-standing commitment to justice not only being done, but being seen to be done) while at the same time protecting the privacy (Article 8 rights) of the person at the centre of the case and their family.
With that Transparency Order still in place, Brian Farmer was able to publish this account of the case: “Retired nurse tells judge her daughter ‘is not safe’ in hospital”.
Sometimes, though, there are problems with the standard Transparency Order that make it impossible to report meaningfully on a case without conveying information that makes it “likely” that the person at the centre of the case can be identified.
Occasionally the person at the centre of the case is so famous (e.g. as a politician, a sportsperson, a media celebrity) that almost anything you write about the person risks identifying them, because so many facts about them are already in the public domain.
That wasn’t so in this case, but “LW” (who was now unable to communicate her own views about being identified or not) had spoken to the media before, and campaigned to raise money for people with her rare disease (Ehlers-Danlos syndrome), e.g. Rotherham woman with rare condition steps up ‘life changing’ surgery campaign; Woman who dislocates her shoulder every night says Nottingham doctors ‘saved her life’.
The wording of the injunction (“identifies or is likely to identify”) means it’s not just naming someone that is prohibited – it’s reporting information on the basis of which someone could figure out who the person is.
So, if Brian and I reported that LW had Ehlers-Danlos syndrome and autism, that she was in hospital and that her parents (one of them a consultant in the hospital where his daughter was being treated, the other a nurse) were critical of the treatment she was receiving, this could provide sufficient information to identify who she was.
In the ‘anonymised’ article Brian published on 18th August 2022, he did not describe the father’s job, but only said he had “a medical background”.
Concern about “jigsaw identification” (i.e. little bits of information which can be pieced together to identify someone) often leads to specific and peculiar prohibitions being included in Transparency Orders (e.g. P’s nationality, their diagnosis, the number of children they have). Most of the time, though, we have to figure out for ourselves what pieces of information might be covered by the Transparency Order, and that’s one of the challenges of trying to comply with it.
“The potential for jigsaw identification, by which is meant diverse pieces of information in the public domain, which when pieced together reveal the identity of an individual, can sometimes be too loosely asserted and the risk overstated. [J]igsaws come with varying complexities. A 500-piece puzzle of Schloss Neuschwanstein is a very different proposition to a 12-piece puzzle of Peppa Pig. By this I mean that while some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote” (Hayden J, at §18 A Local Authority v A Mother  EWHC 1162 [FAM]).
It can be challenging for us to figure out how risky it is to report certain facts, or how likely it is that they might result in identification of P. In practice, this often leads me to self-censor.
Where relevant details would very likely lead to identification of P, it can sometimes make more sense to simply apply to name P.
Public interest and P’s own views
There was public interest in writing about this case in part because the Health Board that the parents were criticising (Betsi Cadawaladr) had recently been criticised in a completely unrelated case in the Court of Protection, before a different judge.
The parents – who were also bound by the Transparency Order – were distressed by it because they wanted to post about their daughter on Facebook. “We have friends all over the world. We are active Christians. We want to be able to make clear posts about what is happening to our daughter, with requests that prayers are offered for her recovery. Facebook is the way we keep people up to date and get prayer cover.” (This would not in fact be captured by the Transparency Order unless they also said that a court was making decisions about their daughter – but I thought it unlikely that they would want to omit that information, and in fact I can see from Facebook several references to the court case.)
It also seemed that LW wouldn’t have minded people knowing her identity – and might even (as her parents said) have wanted her identity made public. She had approached the media to tell her story publicly before, and chosen, when she had capacity to do so, to be photographed for the press. Her mother referred to the court as “stealing her [daughter’s] identity” by making the Transparency Order.
Presumably because of the parents’ view that LW would have wanted her identity to be known, the judge said that the Transparency Order was an ‘interim’ one and would be reviewed at the next hearing. The judge invited submissions and Brian Farmer submitted the letter reproduced below.
In applying to vary a Transparency Order, the key arguments applied to the facts specific to each case concern the likelihood of identification of P, P’s own likely views and best intersts, and the balance between the right to privacy (Article 8) and the right to freedom of expression (Article 10).
We have published letters seeking variations in Transparency Orders several times previously. The letter from Brian Farmer reproduced here is helpful because any of us may in future want to challenge reporting restrictions and his arguments are ones we can all learn from.
Letter from Brian Farmer to Mr Justice Francis seeking to name the protected party
I was at the hearing before Cobb J on August 18 and wanted to ask if you would consider relaxing the transparency order and allowing P to be named in media reports of the case.
I appreciate this is an unusual application.
This isn’t a case where P is easily identifiable because she is well known.
The problem here is simply that the circumstances of the case – specifically the occupations of P’s parents – make it very difficult to write a meaningful report without creating jigsaw identification.
I don’t think it’s just a problem for reporters: I suspect a judge will also have difficulty producing a public judgment.
I’d make the following points:
1: Hearings are being staged in public.
2: The case raises matters of public interest –
(a) You are being asked to make decisions about serious medical treatment.
(b) The health board was criticised by Mr Justice Hayden in October (Re. PH) “North Wales health board’s ‘substantial and alarming failures’ in care of man slammed by top judge”
(c) P’s parents made serious criticisms of P’s treatment at a hospital run by the trust during the August 18 hearing (particularly mother).
(d) P’s parents’ criticisms carry extra weight because father is a consultant employed by the trust and mother is a retired senior nurse.
3: Lots of material relating to P and her health is already in the public domain – in media reports and on social media. Detail was outlined in Ms Sutton’s position statement prepared for the August 18 hearing. That information would seem to suggest that P would not object to details of her health being made public if she had capacity.
4: P’s Article 8 rights are obviously engaged. I would not normally argue that a CoP P should be identified and detail about health conditions made public.
5: However, I would argue that in this case there’s a public interest in reporting the parents’ criticisms and telling people what their jobs are or were – particularly in the light of Hayden J’s criticism. I can’t see how to do that anonymously: giving detail of the parents’ jobs will create an obvious risk of jigsaw identification. How many other patients have parents with those jobs?
6: Given the amount of information in the public domain about P’s health, what harm would naming P cause? We’d essentially only be telling people that P has another health problem and is a patient in a CoP hearing.
7: I’m not clear what position P’s parents take in relation to P’s identification. They said, on August 18, that P would want her real initials used on documents. Using P’s real initials would obviously add to risk of jigsaw identification.
8: There’s also an issue in relation to what’s already in the public domain. We can’t tell people what’s already in the public domain about P without breaching the transparency order. I’d argue that we should be able to tell people what’s already in the public domain.
The judge gave permission to name LW as Laura Wareham, and to name her parents as Conrad Wareham and Erica Wareham.
This meant that Brian was now able to publish the information that the patient’s father, Conrad Wareham was a consultant and “a specialist in the care of critically ill patients” (see: Judge criticises consultant concerned about how doctors are treating his daughter at Welsh health board“). It meant he was able to address the sensitive issue of how a family member with (substantial) medical knowledge engages with the medical treatment of his daughter.
It also means that Conrad and Erica Wareham can write publicly on Facebook (and elsewhere) and speak to the media about the role of the Court of Protection in their daughter’s life (although they are not allowed to name the hospital where she is being treated, or the people involved in her care).
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @kitzingercelia
Brian Farmer is a reporter with the PA news agency.
 For examples of variations to Transparency Orders related to issues other than naming P, see:
- He’s Polish: Challenging reporting restrictions (before Cohen J – varied to enable reporting of P’s nationality)
- Prader-Willi Syndrome and Transparency (before Theis J – varied to enable reporting of P’s diagnosis)
- Predatory marriage and coercive control (before Roberts J – challenged a retrospective reporting order, see §108-§110 of her judgment which deals with this)
- Naming a putative ‘expert’ in a Covid vaccination case: A letter to the judge (before Deputy Circuit Judge Rogers – asked and was granted permission to name the ‘expert’)
- Reflections on open justice and transparency in the light of Re A (Covert Medication: Closed Proceedings)  EWCOP 44 (before Poole J – addressed concerns relating to an interim RRO prohibiting reporting of covert medication)