Duty of FULL disclosure when applying for a Reporting Restrictions Order

Manchester University NHS Foundation Trust v William Verden (By His Litigation Friend, The Official Solicitor) and anor. [2022] EWCOP 8 Feb 2022 (here)

Mrs Justice Arbuthnot has sent out a clear message to all parties in Court of Protection proceedings that, when applying for reporting restrictions, there is an expectation that a full account will be given to the judge of any media coverage that had already taken place.

Establishing the best interests of William Verden is an extremely challenging task from a clinical, ethical and legal standpoint.   In early March ’22 a judge of the Court of Protection (‘CoP’) will decide whether this young man with moderate to severe learning disability, autism and ADHD, whose associated behavioural disturbances make it difficult for him to tolerate invasive medical procedures, should have the opportunity to undergo a kidney transplant that has at best a 50% prospect of success.

What brought the parties into court on 8 February was the question of whether William’s anonymity should be preserved by the standard Transparency Order (perhaps better described as a Reporting Restrictions Order or ‘RRO’) that had been made by a judge, on the papers, when this serious medical treatment case was issued.

The RRO had been made on 31 December ’21 in the standard CoP Transparency Order template form: an injunction was imposed with conditions that no one should identify William, any member of his family, where William lived, or the names of the NHS Trust, the hospital or the clinicians treating William.  As is the norm with such orders, the injunction did not prevent persons from reporting or commenting on any proceedings regarding William in the CoP, provided he was not identified.

What the judge making the RRO did not know, as he had not been told, was that there had been very extensive coverage in the media about William and his medical situation in the four to six weeks before the application was made.   William’s plight, and his mother’s disagreement with the doctors treating him, had already been covered in national and local newspapers from Manchester to Kent via Cardiff and Belfast. William’s name, details of his condition and his shortened life expectancy without a kidney transplant had all been described in detail in the press reports. The name of the hospital where William was being treated had also featured.

Such was the extent of information already available on a quick google search, that it seemed that if anything at all about the substantive proceedings was reported the risk of jigsaw identification of William would be huge. As Mr Farmer of the Press Association put it: “some jigsaws have thousands of pieces, this one is more like a child’s jigsaw”.  If the RRO stood it would effectively create a complete embargo on any meaningful reporting of the CoP proceedings at all.

Those parties who were aware of the media coverage had not revealed its detail to the first judge.  There had also been an assumption that the Official Solicitor, as William’s litigation friend, knew of the detail of the media attention; but she did not. Had she been fully informed of the extent of the material already in the public domain the Official Solicitor would, from the outset, have questioned the strict terms of the reporting restrictions being sought.

Mrs Justice Arbuthnot had little doubt that had the judge who made the order known the full extent of publicity that had already taken place just a few weeks before, he may well have come to a different decision, or that at least, the order would have been in different terms.

In setting aside the order and allowing the naming of William, his mother, the NHS Trust and the hospital involved, Arbuthnot J balanced the competing Art 10 and Art 8 rights.   William’s mother wanted the order lifted so that she might generate a media publicity campaign, hoping that it may lead to a live kidney donor being identified.  That William supported press attention with that aim was a significant factor in the balance coming down in favour of setting aside the initial order and allowing the full identification of William.

Arbuthnot J set aside the challenged injunctions noting:  “For the future, the expectation, except in very unusual cases, would be for any party applying for a RRO to set out what media coverage had taken place, so the court is not placed in this situation again.”

Bridget Dolan QC of Serjeants’ Inn Chambers represented William in this application, instructed by his litigation friend, the Official Solicitor.  Emma Sutton represents William in the substantive case.