Four Daleks and the Tardis

When does a court order come to an end?

The High Court in London recently considered the framework for maintaining Reporting Restriction Order relating to the medical clinicians in end-of-life cases after the patient’s passing. 

Background

The applications were brought by the parents of two unrelated children.  

Zainab Assasi

Zainab was born in 2013 with “a rare and profoundly disabled inherited neurodegenerative disease”. She contracted swine flu in 2016, resulting in lung damage. Zainab’s parents, both doctors, favoured more active treatment over the palliative approach of her clinicians. They were critical of the regime under which the paediatric intensive care unit operated. This culminated in Zainab’s father being forcibly removed by police and banned from attending the ward.  

In 2019, the hospital sought a declaration that it was in Zainab’s best interests for life-sustaining treatment to be withdrawn. A Reporting Restriction Order was made.  

…which included a prohibition on the publication of the parties’ names and any information which may lead to their identification or the identification of any person who had the care of Zainab

Zainab passed away before the final hearing. Her parents remain critical of the hospital. They wish to publicise Zainab’s case and name names. 

Isaiah Haastrup

Isaiah was born in 2017. He was deprived of oxygen for a significant period during the delivery. As a result, Isaiah’s central nervous system was “profoundly compromised”, and he was dependent on a ventilator. In 2018, he was removed from the ventilator by court order and passed away. 

The NHS trust accepted liability for the circumstance relating to Isaiah’s birth, and a claim for compensation by his parents was settled.  

At the inquest, the focus was apparently on the circumstances of his birth rather than his death. The question of reporting restrictions was raised. The coroner adjourned the hearing “…pending clarification from the High Court as to the scope and continuation” of the Reporting Restriction Order in the case. 

Judgment

The starting point is that, in both cases, a [Reporting Restriction Order] covering the treating clinicians and staff is currently still in force, having been made during the currency of the original inherent jurisdiction proceedings and during the life of each child. Each of the two orders was expressly made on the basis that it would have effect during the life of the child and thereafter until further order and that it would, therefore, continue in force after the child’s death.

In Re S (a child), Lord Steyn considered that neither Article 8 (Right to respect for private and family life) nor Article 10 (Freedom of expression) of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has precedence.  

On balancing these competing rights, President of the Family Division,  Sir Andrew McFarlane, considered that the parents’ claims to be allowed to name the treating clinicians lacked “…any particularity or granular detail”:

Their rights in this regard require respect and rightly are therefore in the balance, but the absence of any detail prevents the court going further and evaluating the weight to be afforded to those rights in any more sophisticated or informed manner.

Ultimately, the balance was “…firmly in favour of the maintenance of anonymity”. Other remedies “…by which the parents may seek to achieve their aim” are available.

Conclusion

In each case, the continuation of the Reporting Restriction Order was determined, in the context of Articles 8 and 10 ECHR, to be “justified and proportionate”.

I therefore refuse the application made by each parent for the discharge of the order in their respective cases. The orders in each case will be amended to reflect the changed position following the death of the children and will be reissued on the basis that they will remain in force ‘until further order’.

Postscript

It should be noted that the application of the ECHR in English law is entirely unrelated to, and freestanding of, Brexit.

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