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Judge backs right-to-die confidentiality

16 May 2011

A judge has given the strongest endorsement to statutory rules that Court of Protection hearings held in public should be accompanied by far-reaching reporting restrictions protecting the confidentiality of those involved.

The case, W v M, S, An NHS Primary Care Trust, and Times Newspapers Limited [2011] EWHC 1197 (COP), involved a 51-year-old woman, M, suffering from a degenerative illness and whose current condition is such that her family has applied for a declaration that they or the doctors should be allowed to withdraw life-sustaining treatment.

While CoP hearings are, by law, usually held in private, the Court of Protection Act 2007 also provides that applications relating to serious medical conditions may be held in public but that the judge may make an order imposing restrictions on reporting or publication.

This includes decisions about the withholding of nutrition and hydration from persons in a permanent vegetative or minimally conscious state, as in this case – now often referred to as right-to-die cases.

M’s daughter, W, sought an order preventing the publication of information that could lead to the identification of the M, her family, and the NHS staff looking after her, as well as a ban on the media contacting or communicating with any of them.

The Times initially opposed a prohibition on the taking and on the publication of photographs but eventually withdrew both objections.

Considering the balance between press freedom and privacy rights Mr Justice Baker found in favour of M and of the Official Solicitor.

He continued: “The freedom of expression enjoyed by the press will be restricted but the extent of that restriction will, in my judgment, not prevent the press from reporting the issues, evidence (including expert evidence) and arguments.”

The order prevents the identification of M, past and present parties to the proceedings, witnesses – though not expert witnesses – the healthcare professionals involved, M’s care home and any address mentioned in the proceedings. The only geographical reference allowed is to the “North of England”.

The media are also banned from coming within 20 metres of M or 50 metres of her care home – or ‘doorstepping’.

For the first time the order explicitly covers any “social network or media including Twitter or Facebook” and comes with penal order warning any person or organisation breaching the order that they could be found guilty of contempt of court and either sent to prison or fined.

The hearing on the merits of the application is scheduled for July.

Reminding the parties of the particular nature of CoP cases, Baker J said the court was “concerned with the weak and the vulnerable, not the rich and the famous”.

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Procedures Wills, Trusts & Probate