Reporting restrictions after death

In V v Associated Newspapers Ltd and othersCharles J continued a reporting restriction order applied for after the death of C, who had been found to have capacity to refuse medical treatment and who had died after rejecting her treatment.[2]  Following C’s death her family including her teenage daughter A were subjected to intrusive press attention (the interest in the case was described by Charles J as “prurient” several times.  Key findings in the judgment are summarized below:

• A reporting restriction order is not a best interests decision under the MCA 2005 but a balance between competing rights under Articles 8 and 10 (paragraph 58).  The rights of C’s family were engaged because the Court makes evidence based decisions and so heard from a range of people about C and can invade their privacy as well as C’s (paragraph 78)
• Once the Court had found that C had capacity to make decisions about medical treatment it had no jurisdiction to make welfare orders.  But this finding and C’s subsequent death did not prevent the Court from granting a new injunction.  Section 47 MCA gives the Court of Protection the same powers as the High Court “in connection with its jurisdiction”.  Because the interference with C’s family’s Article 8 rights flowed from the existence of the COP proceedings about C, the application for the injunction was “in connection with [the COP’s] jurisdiction” (paragraph 105).
• Where there is a conflict between Articles 8 and 10, an intense focus on the comparative importance of the rights claimed is necessary.
• In many cases the safeguards of a public hearing can be secured without those involved being identified.
• The COP should generally ask the following questions:

i) Are there good reasons for the hearing to be in public?

ii) If there are should a public hearing be ordered with or without reporting restrictions?

iii) As part of (ii): How effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?

iv) By reference to the conclusions on the above questions, on Lord Steyn's ultimate balancing test, should the hearing be in private or in public and if in private what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done) and if in public what reporting restrictions order / anonymity order should be made?