England’s Superinjunction Spring: publicity issues in the Court of Protection

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First injunction specifically bans Twitter and Facebook’ read a much-tweeted headline in the midst of England’s Superinjunction Spring.

Naturally, the judge’s explicit ban of publication of information on Twitter and Facebook attracted a lot of attention on those platforms; and technology bloggers, as well as the mainstream press, were quick to report this apparent legal first for the English courts.

Journalists also drew attention to the fact that an earlier order, later overturned, banned them from speaking to 65 people connected to the case.

This wasn’t an injunction protecting a celebrity’s private life, however; this was a Court of Protection reporting restriction in a case protecting the privacy of ‘M’ , a minimally conscious woman suffering profound damage and wasting to the brain.

M’s mother, ‘W’, supported by other family members, applied to the Court of Protection for a declaration that it is not in M’s best interests for artificial nutrition and hydration to be provided and an order that those treating her “may lawfully discontinue and withhold all life-sustaining treatment and medical support”.

Instead, M would be given treatment and nursing care “as may be appropriate to ensure that she suffers the least distress and retains the greatest dignity until such time as her life comes to an end”.

Lord Neuberger’s recent super injunction report did not cover anonymous orders in the Court of Protection and family courts, but they have been part of the furore nonetheless: John Hemming MP has used parliamentary privilege to name a woman involved in a family case and the Independent’s figure of 333 super injunctions included 264 protecting children and vulnerable adults.

So what are the implications of talking about Court of Protection orders in the same breath as super injunctions? Some argue that it might deter people from using the Court.

In the case above, W v M & Ors [2011] EWHC 1197 (COP), Mr Justice Baker raised concerns that the family of ‘M’ gave “real consideration” over whether to continue with the case once they discovered the press interest in identifying and contacting them.

The judge reported that ‘B’, M’s sister, who is caring for W (now also ill with a degenerative illness) had said in her statement that M’s illness “turned her life upside down”. As reported by PA Media Lawyer, Baker J said:

“She spoke of the difficulties she and other family members had experienced in deciding whether to bring these proceedings. She described the added difficulty she faced now caring for W.

“She said that she would struggle to cope with the possibility of being contacted by the press, and thought that, if the press did contact her, she might think twice about visiting M and taking her mother along with her.”

‘S’, M’s partner, said that “I do not see what the press wish to achieve by… being allowed to contact me… just the thought of it makes me very anxious and I do not know if I could cope if this were to happen as they would be encroaching on something which is so deep and painful to me.

Mr Justice Baker commented that the testimony “illustrates how the fear of press intrusion may affect the lives of ordinary people who have not sought to be cast into the public gaze“.

Once the Times was aware of the evidence, it no longer opposed the ban on contacting B and S – although it claimed a “victory against draconian court orders” when the ban on contacting 65 people was confined to M’s family.

But the media is often not aware of the evidence because it is not in court. While the Times was represented at the hearing, other media outlets who complained about the injunction were not, according to Lucy Series, a doctoral candidate based at the University of Exeter, whose research examines capacity and consent for adults with learning disabilities or dementia in community care settings.

She says that the media is not inclined to report that their methods of investigation “were a source of considerable distress to some families, which could act as a deterrent against them seeking justice on very important and sensitive issues”.

“I presume that though they have seen the injunction, they have not been party to the witness statements by the family that the Times’ lawyers saw.

“In my view, for what it’s worth, compared with the highly unpleasant image of the press doorstepping a very vulnerable woman in her care home – potentially following her about her business outside the home, photographing her and approaching her distressed family and those who care for her – it is hard to agree with the opinion expressed by John Hemming that these injunctions are ‘evil’.

The media coverage issue extends to the family courts too. Lucy Reed, a Bristol-based barrister who blogs about family law, is concerned by the press’ fickle approach to family courts reporting.

“The press are quite prepared to bang the drum of public interest when it suits them, but once they have milked the story they are off elsewhere like a puff of smoke,” she says, giving the Times’ now silent campaign against secret family courts as an example.

“From what I can tell some elements of the media (including respectable “broadsheets”) are guilty of utilising the legitimate public interest arguments in order to justify the publication of partial or limited material in a sensationalist and misleading way, which is profoundly contrary to the public interest. I would like to see more reporting of family cases, but I would like to see better reporting, and better (any) editorial control.

“At the moment the only decent reporting of family cases comes from the blogging community, and that does the public a disservice. The public have a right to know what goes on in family courts, and to be given a balanced and rounded view of the rights and wrongs of the system and in individual cases. There are stories of miscarriages that need to be told, and there is an important public education role that is currently not being fulfilled.”

Reed is particularly concerned that the media is prepared to rely upon information from parents in care proceedings and their supporters without also finding information from other sources, whether through attending court, obtaining documents or speaking to all parties.

“The willingness of the media to present that information as “truth” is profoundly worrying,” she says. “If the [injunction]situation were anything like as reported in the press we should all be very, very worried, but the notion that any section of the court system routinely imposes gags on any category of case or party is just wrong – and ignores that fact that it is open to anyone to apply to attend, to see documents or to report more widely than the statutory provisions allow as standard.

How to encourage journalists to the court, then? Series and Reed both draw attention to the economic issues at play. “The press have a potentially very important educative role in informing the public about the work of the courts. It would be unfortunate if they were deterred from attending court and responsible coverage by the costs of seeking permission to report,” says Series.

Reed, meanwhile, accepts that it may not be economically viable for a newspaper reporter to sit in court throughout all the hearings in a particular case, but she doesn’t “accept that such a fact justifies poor quality journalism“.

There are other ways to source information (application for disclosure of documents for example, attending at least some hearings, working collaboratively with other journalists), and one would have thought that journalists and newspapers with reputations to maintain would operate on the maxim of “if you can’t report nothin’ well then don’t report nothin’ at all“.

Series believes press standards are improving in some quarters, however, and praises “excellent reporting” by the Telegraph’s Martin Beckford, the Independent’s Jerome Taylor and journalists at the social work publication Community Care. “I hope that as the press attend more hearings, the quality of reporting reflects their growing legal awareness of this important area,” she adds.

Finally, what can the courts do to smooth the process and improve reporting? Lucy Series thinks that the Court of Protection could be made more transparent, in a responsible way. Firstly, more judgments should be made available in the public domain, she says.

The case law we have is very limited, and although the courts are careful to publish any cases making legal precedent, this is insufficient from the perspective of informing and reassuring the public about its work, and also improving the practice of professionals working in this field.

She also has misgivings about the standard practice of protecting the identity of any public authorities involved in the cases: “publishing their identities would help increase their accountability as well“.

They are, after all, agents of the state and their work is publicly funded,” she says, adding that the Court of Protection has already shown “a responsible and balanced approach” towards permitting the press to identify protected parties in high profile proceedings.

Reed agrees that changes need to be made: “there needs to be an urgent review of the procedure and regulation in respect of reporting in family cases, so as to construct a system which recalibrates the balance between transparency and privacy and which promotes good reporting“.

A final hearing of W v M & Ors is due to take place in the Court of Protection in July 2011. Mr Justice Baker’s judgment of 12 May can be read here.

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