2011 05 Incapacity

Wednesday 1 June 2011

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W & M v S, A NHS Primary Care Trust and Times Newspapers Ltd [2011] EWHC 1197 (COP) (Baker J): M was in a minimally conscious state. Her mother, W, had applied to the Court of Protection for approval of the withdrawal of artificial nutrition and hydration. The application was to be heard on 18 July 2011 in public, with judgment to be given in open court. The litigation friends for M and W applied for a reporting restriction order preventing identification of M, W, and of M's sister and partner, of any witnesses in the proceedings, of those treating and caring for M, and of the PCT currently treating her, the Trust which had formerly treated her and the establishment in which she was being cared for. The terms of application were initially opposed by the Times Newspapers Ltd (TNL). On evidence being submitted, TNL and the other parties were able to reach agreement. Since TNL were only representing one section of the media, the Court was required to carry out a balancing exercise between Articles 8 and 10 in order to decide the application. Relevant to Article 10 was that the freedom to report proceedings in open court is in the public interest, the particular issue is likely to be whether nutrition should be withheld from a patient whose consciousness is above the vegetative state and this potentially raises issues of utmost importance which the media should be fully free to report, the reporting of such cases is difficult if the restrictions imposed are too onerous and there is a public interest in the public having confidence in the way in which the Court of Protection is working. Relevant to Article 8 was that any identification of M in the media would infringe her right to respect for family and private life, any identification of her family members would also interfere with her rights and with their rights, and there was evidence that identification might lead the family members to abandon the proceedings which would potentially be an extremely serious breach of their rights under Article 6. The balance fell in granting the orders sought. Freedom of expression enjoyed by the press would be restricted but the order would not prevent reporting of the issues, evidence and arguments.Click here for the transcript.

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