A significant judgment about transparency was handed down by the Supreme Court this week – Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15.
The case of Abbasi has been very long running, as has the case of Haastrup that has travelled with it, from the High Court, to the Court of Appeal and finally to the Supreme Court. The children whose end of life care the proceedings were originally about have passed away, but their parents have been battling to be able to tell their stories, prevented from doing so by injunctions made when their children were alive but very ill – and which remained in place after their deaths. The hearing was last April, and now a year later we have the decision. You can read it here, but it’s very dense. The press summary is also useful.
The Supreme Court concluded that the original court did have the power to make the injunctions in the first place, that the evidence that could be produced in the heat of the moment when the focus was on treatment and care of the child would necessarily be generic, and that the court also had the power to carry on the orders for a short period following death, and to review the orders after death.
The judgment proceeds on the basis that the court has inherent powers, under the ‘parens patriae’ jurisdiction, to make an injunction to protect the child and the proceedings. Protecting the child while still alive would also often involve ensuring that the clinicians caring for the child were not the subject of harassment or abuse, because that might compromise the care of the child or the ability of the hospital to fulfil its own duties to care for other children. The Health Trust which brought the application could at this stage apply under the parens patriae jurisdiction for protective orders to hold the position whilst the end of life care was given, and the court could leave a buffer period after death to enable clinicians to make their own applications after death if they still needed protection. By that stage it was no longer good enough for the trust to make an application on behalf of the clinicians, and the parens patriae jurisdiction was unavailable, so the clinicians would have to apply on some other basis such as privacy, harassment or defamation. They hadn’t done that here, and the appeal had been brought by the trusts. To enable clinicians to make their own application in similar circumstances in the future, they should be notified if the order was to lapse or if anyone applied to discharge it.
Once a child has passed away there is likely to be a drop in the risk of harassment or abuse, but the importance of the parents’ right to tell their story would continue to be high. The passage of time was therefore really important – an injunction that was justified during the life of the child might not be justified after the child had died, and the more time that passed the less likely it would be that an order would be necessary. In this case, there wasn’t any evidence before the court that would have justified the orders now, several years after death.
We haven’t seen the names of any clinicians in the media. They might just be in the pipeline. Or it might be that the clinicians have, in response to the judgment, gone back to the High Court to seek fresh injunctions to protect them, following the guidance given by the Supreme Court. We might expect to hear news of any such application soon. As the Supreme Court is the ‘top court’ in the UK, the only other recourse the trusts (and possibly the clinicians themselves) might have is an appeal to the European Court of Human Rights.
There is a lot more to this judgment than we’ve been able to summarise here. For instance:
- There are some remarks about how the inherent jursidiction interacts with s6(1) Human Rights Act 1998, about the Open Justice Principle, and about what s12 Administration of Justice Act 1960 does and doesn’t cover (names of witnesses for example) which were perhaps unexpected, and
- Although the judgment relates specifically to proceedings brought by health trusts where there is a dispute about end of life care, it is likely that some of what is said will have some application in other similar scenarios. In particular, the discussion in the judgment about the parens patriae jurisdiction and the alternative causes of action to protect clinicians may have some impact on the making of orders that adjust the restrictions on reporting in other situations, and it might be said that other categories of public body or professional caring for or responsible for the care of children could use this judgment as a template for protection of themselves or their employees (e.g. local authority social workers) – where the facts and evidence supported a pressing need. We think these issues will take some time to work out and we don’t attempt to tackle them here.
- It’s useful to see up-to-date consideration being given to the potential influence of social media and how this should be factored in to decisions of thsi kind.
There’s a lot to take on board in this judgment. This is just intended as a brief note of the impact of the decision in settling a some outstanding uncertainty about indefinite anonymisation.
Image: photo of the Supreme Court taken and kindly shared by James Lee.