Reflections on the Supreme Court’s judgment in Abbasi on the duration of reporting restrictions

by Daniel Clark, 25th April 2025

On Wednesday 16^th April 2025, the UK Supreme Court handed down judgment in two cases. One of them, For Women Scotland Ltd v The Scottish Ministers, has received a huge amount of attention in the press and in social media. The other has not.

It is nevertheless a very important judgment that considers when and how freedom of expression can justifiably be limited. Two cases were joined for this appeal – and there was only one issue before the Supreme Court: was it right for injunctions that prohibited the identification of medical staff to be extended indefinitely?

The first case concerned Zainab Abbasi, who was born in 2013 “with a rare and profoundly disabling neurodegenerative disease, to which was added lung damage as the result of her contracting swine flu in 2016”(§9)[1]. She was placed on a palliative care pathway, and her parents disagreed, considering that active treatment was more appropriate. She died on 16^th September 2019, before a full hearing. The High Court injunction (“the Abbasi injunction”) prohibited publication of the names of four clinicians (all consultants) (§21-25).

The second case concerned Isaiah Haastrup, who was born in February 2017.  “[D]ue to clinical negligence he suffered oxygen deprivation during birth which led to grave damage to his central nervous system” (§14). He was dependent on a ventilator, and his parents opposed withdrawal of the ventilator. In the High Court, Mr Justice MacDonald found that it was in the child’s best interests for that treatment to be discontinued, and he died on 7^th March 2018.

This High Court injunction (“the Haastrup injunction”) was far more wide-reaching than the Abbasi injunction. It restricted publication of the names and/or personal details of clinical staff involved in ante-natal care and labour; clinical and nursing staff and non-clinical staff  who cared for Isaiah; any second opinion clinician; and any clinical staff that were consulted or received communication about a possible transfer (§26).

In 2020, the two families applied to discharge these injunctions, and Mr Justice Cobb ordered that the applications be heard together. The respective Trusts cross-applied for the injunctions to remain.  In the High Court in June 2021, Sir Andrew McFarlane, the President of the Family Division of the High Court, dismissed the applications of the families, allowed the applications of the respective Trusts, and extended the injunctions indefinitely.

He found that the article 8 rights (to a private and family life) of the treating clinicians took priority over the article 10 rights (to freedom of expression) of the parents. This was particularly because of the risk of abuse and harassment of those clinicians. You can read that judgment here: [2021] EWHC 1699 (Fam).

The parents appealed to the Court of Appeal and, at the end of March 2023, that court allowed the appeal and discharged the injunctions. You can read that judgment here: [2023] EWCA Civ 331

The treating NHS Trusts then appealed that decision to the Supreme Court and the Court of Appeal “stayed” (i.e. suspended implementation of) its order pending the outcome of the appeal. This was because if the families had gone ahead with publicly naming the relevant clinicians and nursing staff involved in their children’s care there would not have been much practical point in the Supreme Court making a decision about whether or not the Court of Appeal was right to discharge the injunctions. By then it would have been too late to continue the protection of those people’s identities – the cat would have been out of the bag.  It is usual practice, when at appeal is anticipated, to require the parties to ‘maintain the status quo’ while waiting for the judgment of the higher court (see, for example, the stay granted by the Court of Appeal in the Andy Casey case, which I wrote about here: “Application to appeal the finding that Andy Casey is dead “)

The case was then heard by the Supreme Court over two days in April 2024. You can watch the recording of those hearings on the Supreme Court’s website.

In its judgment, handed down more than a year later in April 2025, the Supreme Court dismissed the appeal.  They found that the Court of Appeal were correct to note “the high value attached to freedom of expression both under the common law and under article 10 of the Convention: a value which, as the Court of Appeal observed, is reflected in the use of adjectives such as “convincing” and “compelling” by both the European court and domestic courts to describe the nature of the considerations required to justify restrictions” (§168).

The stay on the order made by the Court of Appeal was therefore lifted. In other words, there is now no prohibition on the identification of clinicians.

In this blog, I will first consider the concerns raised by some doctors – particularly the Intensive Care Society – about the effect of this judgment. I have some sympathy but think that the Supreme Court ultimately provides important safeguards.

I will then explain why I welcome the judgment. Indefinite injunctions are a significant infringement of the rights of family members to talk openly about their experience of healthcare systems. It is only right that any interference in the exercise of that right is for the shortest time possible.

Finally, I will consider what the implications are for the Court of Protection.

A consideration of risks to clinicians

Some doctors have expressed serious concerns about the implications of this judgment. For example, the Intensive Care Society describes it as setting “a worrying precedent”. They say:

“As we believe that decisions reaching the courts for scrutiny are never made by a single individual, we are concerned that it is unreasonable — and potentially harmful — to single out and name one person as the ‘face’ of a collective decision.”

This concern is a fair one. Decision-making is a complex process that rarely, if ever, is the sole responsibility of one person. Indeed, if one person was identified as the prime mover in any one decision, the risk of abuse or harassment to that person could be huge.

Clinicians are already making very difficult decisions in cases such as these: the risk of harassment could have a chilling impact both on their ability to undertake their work as well as on their personal wellbeing.

I nevertheless don’t think that the Intensive Care Society gives the Supreme Court enough credit.

To begin with, its judgment does not prohibit the use of the reporting restrictions for the duration of court proceedings. In fact, the justification for the restrictions at this stage do not need to be contextual; that is to say, the application for them does not need to be based on a specific risk.

The court acknowledges that it would be perfectly reasonable, at this stage, for restrictions to be justified on the basis of evidence concerning the risks of abuse and harassment from earlier cases (see the comments on “generic evidence” at §155).The primary focus will need to be on collating evidence about “the determination of the life or death question which the proceedings have been issued to have speedily resolved” (see §42).

In other words, the proper focus of the clinicians is the welfare of the child they are caring for. This is a point that is emphasised by Lord Sales in his concurring judgment (see §183-203). It’s not altogether clear why Lord Sales felt compelled to offer a concurring judgment, particularly given that he emphasises what the majority judgment says rather than posing a major difference in reasoning. Whatever the reason, my suspicion is that this may explain the length of time (a year) between hearing and publication of the judgment (which Joshua Rozenberg also suggests).

I was also particularly struck by this passage from the judgment: “[t]he fact that the internet is awash with harassment and vilification is no reason why anyone should be expected to put up with it, if it reaches a level which constitutes an interference with their legal rights” (§157).

It seems surely right to me that the very fact of abuse does not mean that somebody has to put up with it. Where there is a real risk of that abuse, it also seems right that the court should be able to protect individuals from experiencing it.

The British Medical Association, which acted as intervenor (i.e. not a party but nevertheless with permission to address the court) in the Court of Appeal and Supreme Court, has expressed its own concerns. Similar in substance to that of the Intensive Care Society, their press release also notes that:

“The public attention and response to these cases does not simply disappear once proceedings have ended in court and doctors who are simply doing their job in the best interests of their patients should not live in fear for their privacy or their safety.”

The Supreme Court was alive to this issue, and it does not hold that these injunctions should simply fall away at the end of proceedings: “A reasonable duration would be until the end of the proceedings and, in the event that they terminate with the child’s death or the grant of the declaration sought, for a subsequent cooling-off period” (§182(10), see also §66).

However, any extension beyond a cooling-off period must be carefully justified. This is because, with the passage of time, the risk of abuse and harassment will most likely reduce. While not minimising the grief that the parents will feel, the court (I think accurately) notes that, “the emotional reaction of the general public is unlikely to be as strong, especially if publicity was restricted while the child was being treated […] By contrast, the effect of the restraint upon the parents’ freedom of expression is likely to be much more enduring in its consequences. The sense of injustice engendered by being prohibited from speaking freely about the loss of their child may well be lifelong in its effect” (§46, my emphasis).

The court also doesn’t completely rule out the possibility of indefinite injunctions. However, the court found that, if injunctions are being sought at the end of proceedings and the cooling-off period, the Trusts would have no legal basis for applying for these injunctions. Instead, a new injunction would need to be made, an application for which must be brought by the individual clinicians (or representatives of said individuals) concerned (see §181).

If new injunctions are being applied for, there is a need for “specific evidence” (§182(13)) about the risk posed to clinicians if their identities became known. The court notes that, “it appears to us that it would be difficult to justify the continuation of the injunctions in the absence of evidence demonstrating a real and continuing threat of a serious nature” (§181). This is in contrast to the injunctions made at the start of active proceedings, which can rely on speculation of the risk of harassment and abuse based on previous cases.

The relevant court then needs to engage in a balancing exercise, which the Supreme Court provides a mini checklist for:

1. Is there an interference with a relevant right, namely article 8 or article 10?
2. Does the interference with that right pursue “a legitimate aim”; legitimate referring to whether it can be justified in accordance with the law?
3. Is that interference “necessary in a democratic society”? §182(15)

This analysis seems to me to be in line with the liberal philosopher’s J.S. Mill’s Harm Principle: that speech should only be curtailed in the event that it may cause significant harm.

Mill provides the example of somebody expressing a view that corn-dealers are starving the poor. This opinion might be wholly without merit but Mill does not think the right to express it should be curtailed. That changes, however, if the same opinion is repeated to a baying mob who have assembled outside a corn-dealer’s home. In that event, the risk of harm is so great that the speech can reasonably and morally be curtailed. In other words, curtailing that speech in that context is “necessary in a democratic society”.

Why I support the Supreme Court’s decision

The Supreme Court expands further on point C), above. They say that, “the need for any restriction of freedom of expression must be established convincingly. It must be justified by a pressing social need, and must be proportionate to the legitimate aim pursued” (§182(16)).

I think this is an important clarification on the limits of interference in freedom of expression. In my view, the rights of families to freely discuss their experiences is of great social importance. Taking into account the injunctions on speech during proceedings, and then for a cooling-off period, the need for indefinite restrictions on speech will only exist in limited circumstances. I do not think that there will never be a situation that demands this; instead, I imagine it will be very rare indeed.

As the Supreme Court notes, medical clinicians are “public servants acting in an official capacity” and that “the requirements of protecting them [from criticism] have to be weighed against the interests of freedom of the press or of open discussion of matters of public concern” (§176).

Furthermore, “the treatment of patients in public hospitals is a matter of legitimate public interest, and that the medical and other staff of public hospitals are public figures for the purposes of the [European] Convention [on Human Rights], with the consequence that the limits of acceptable criticism are wider than in the case of private individuals” (§179).

The Intensive Care Society has said, “It is disappointing that clinicians working for the NHS rather than in a private capacity now seem to have to meet a higher threshold to prove their own rights outweigh those of the public interest, simply because they work for the NHS”.

I do agree that it seems odd for a specific place of employment to mean that somebody needs to meet a higher justification for protection. However, as Alex Ruck-Keene KC (Hon) points out, “even if the limits of acceptable criticism may be wider than in the case of private individuals, that does not give carte blanche to those who wish to criticise clinicians and other hospital staff who may – in many cases – not be in a position to be able to respond”.

That being said, the NHS is a public institution that is funded by taxpayers. Much like civil servants, those who work for it do need to be able to justify why the public cannot know who they are. In fact, the Supreme Court points out that a member of the public with a functioning knowledge of the internet would be able to find out the names of individual clinicians anyway, and perhaps even deduce who is involved in certain cases, once they know the name of the hospital (§170).

I also think it’s important to point out that the absence of a prohibition on publicly naming an individual does not necessarily mean that journalists or members of the public will name them. I haven’t seen any reporting of the names of the clinicians. Nor has Lucy Reed, writing for the Transparency Project.  This may be because it’s in the pipeline; it may be because the clinicians have sought injunctions as the Supreme Court says should happen; it may be because they’re not going to be publicly named.

What is at stake is the principle of transparency, and the freedom of family members – those most closely affected by decisions taken by clinicians and the court – to talk freely about their experience if they want to. It should not require a costly and lengthy court application to be able to do that.

What does this mean for the Court of Protection?

We need to be cautious about reading too far into this because the court was concerned with injunctive orders made in the context of cases concerning the withdrawal of life-sustaining treatment from children. However, the judges do acknowledge some of the issues are raised in cases concerning adults. For example, at §172, the court notes that, “the moral and ethical questions surrounding the treatment of children and adults in positions analogous to Zainab and Isaiah generate intense public debate. Naming the clinicians involved is relevant to that debate” (my emphasis).

It seems to me, and Alex Ruck-Keene KC (Hon) notes the same, that this will have implications for life-sustaining treatment cases in the Court of Protection. Indefinite injunctions in those cases will need to be based on cogent evidence rather than a default imposition.  

I am not actually sure that indefinite injunctions are the default position in life-sustaining treatments heard before the Court of Protection. In a blog about a case concerning an application to withdraw life-sustaining treatment, Celia Kitzinger notes that the Transparency Order prohibited, “the identity of the treating clinicians, which is less usual and which – when this restriction is applied – is often lifted at or shortly after the end of a hearing, or after the protected party has died” (my emphasis).

The standard Transparency Order, which acts as the default template, makes provision for the prohibition on the publication of names, and other identifying information, of P and their family members. It also makes provision for the non-identification of “ANONYMISED PERSON WHOSE IDENTITY SHOULD NOT BE PUBLISHED (who the court has so identified to the parties in private”. This can include those providing care for P, including clinicians.

It is helpful to have confirmation from the Supreme Court that, as Celia Kitzinger noted, these restrictions should indeed be lifted.

I think that this judgment has implications beyond life-sustaining treatment cases (and beyond cases involving medical treatment and clinicians). The professionals in most Court of Protection cases are social workers, best interests assessors, professional deputies, NHS psychiatrists, psychologists, nurses, etc. It seems to me that the Supreme Court’s judgment may also be applicable to those professionals.

The judgment may also have some impact on the duration of Transparency Orders. 

The standard, default, Transparency Order template offers three possible options for the durations of the order. It says:

Duration of the Injunction

(8) This Injunction shall have effect [ until further order of the Court ] [ the death of THE INITIALS CHOSEN TO IDENTIFY P ] [ X weeks / months after the death of THE INITIALS CHOSEN TO IDENTIFY P ].

The second and third options, that the injunction shall have effect until after the death of P, or X weeks/months after P’s death, align with the Supreme Court’s decision regarding a cooling-off period. However, in my experience it’s much more common to see Transparency Orders that have duration “until further order of the Court”.

This means that family members of protected parties in the Court of Protection have to apply to the court for a discharge of that Order so that they can speak freely[2].  This process is time-consuming (because the court doesn’t tend to treat the applications with any sense of urgency) and stressful. If a person doesn’t know how to make that application (which is via the filing of a COP 9), they may also need to hire a lawyer for advice.  This can incur additional financial costs that may well be unsustainable, making freedom of expression contingent upon personal finances.

When the duration of an order is “until further order of the court”, an application to vary or discharge it still needs to be made even after the death of the protected party if the family want the freedom to speak about all aspects of that person’s life, including their role as a “P” in the Court of Protection (see Bureaucracy blots out the sun”: Telling Ella Lung’s story).

A main force of the standard Transparency Order is to prevent family members from revealing that a person is or was a P in the Court of Protection. This differs from what the Supreme Court judgment concerns, which is specifically about the naming of medical professionals. In fact, by the time High Court was considering these injunctions (in 2021), the families could publicly use the names of the child at the centre of each case: Zainab Abbasi and Isaiah Haastrup.

That being said, in my view this judgment from the Supreme Court makes the default position of Transparency Orders being made “until further order of the court” entirely untenable. A Transparency Order of this duration is one that indefinitely inhibits the free expression of those involved in Court of Protection cases.

It is not clear at all whether or on what basis that is “necessary in a democratic society”. In my view, it is not.

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132  and Bluesky @clarkdaniel.bsky.social.

_{[1] Note: Unless otherwise stated, all quoted material and references with only paragraph numbers (marked by “§”) are to the published Supreme Court judgment. You can read it here: Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15.}

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[2] _{See, for example:}

• _{Our ordinary story ….and how it became an unbelievable family experience of the Court of Protection by Amanda Hill}
• _{A mother now free to tell her Court of Protection story by Amanda Hill with Heather Walton}