Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB)
This article originally appeared in Issue 1 (May 2019).
Spencer J refused an application for an anonymity order by the Claimant, who had suffered a stillbirth and psychiatric injury and was bringing a clinical negligence claim against the NHS Trust.
The Trust conceded liability for the stillbirth and part of the Claimant’s damages claim. The only issue was the claim for the Claimant’s alleged pathological grief reaction combined with intractable depression.
The application
On the first day of the trial, the Claimant applied for an anonymity order to prohibit publication of her name. In support, the Claimant’s solicitor made a statement noting that identification of the Claimant could cause irreparable damage to the family unit, interfere with the Claimant’s private life and lead to a risk of suicide. She further stated that the public interest could be served without the need for disclosure of the Claimant’s name.
Counsel for the Claimant further argued that the trial included deeply personal matters concerning her mental health and medical history and that identifying her would inevitably lead to identification of her children. It was also argued that she might face the risk of receiving online abuse and that, given her Polish background, this might even extend to racial abuse.
The Claimant had full capacity, but she was described as a “highly vulnerable individual.”
The resistance to the application
The NHS Trust took a neutral stance on the application. However, the Press Association argued that, although the Claimant’s Article 8 ECHR rights to private and family life were engaged, the court also had to consider Article 10 – the freedom of the press.
They argued that it was exceptional for the court to grant anonymity orders in cases where the Claimant is not a protected party. They added that in such cases anonymity orders should only be made where necessary in the interests of the administration of justice.
Furthermore, they stated that they were signatories of the Independent Press Standards Organisation Code of Conduct which set out guidance on how to responsibly report on the issues raised by the case, and that the Claimant’s concerns about privacy would be met by their adherence to the guidance in the Code.
The judgment
Spencer J refused to grant the anonymity order.
He began his judgment by emphasising the general principle of open justice. He noted that it was important for two main reasons: (1) to protect the rights of the parties and (2) to maintain public confidence in the administration of justice.
He then looked at Part 39 of the Civil Procedure Rules which emphasise that proceedings must be open unless privacy is necessaryto protect the interests of party or for the administration of justice-: ‘the open justice principle’.
Spencer J also looked at two previous cases in which the courts had recognised that Article 10 does not just protect the substance of ideas and information but also the form in which they are conveyed.Both cases acknowledged that being able to report the names of individuals makes a press report more compelling.
Spencer J also rejected the Claimant’s attempt to rely on the case of JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 concerning an approval hearing. He agreed with the Defendant that approval hearings were not comparable with the present case for two main reasons:
- In approval hearings, the court is exercising a protective function which is fundamentally different from its normal function of deciding disputes between parties.
- A child or protected party in an approval hearing has no choice but to go before the court to have the settlement approved. They cannot settle the case privately and avoid court proceedings in the same way as an adult with full capacity.
Spencer J also distinguished another case which the Claimant attempted to rely on – ABC v St George’s Healthcare Trust [2015] EWHC 1394 (QB).
In ABC the claimant was an adult woman with full capacity bringing a ‘wrongful birth’ claim against an NHS Trust over its failure to tell her that her father had Huntingdon’s disease – a genetic inherited disease. She wanted to protect her child from inadvertently finding out through the media that they had a 50% risk of carrying the disease. It was accepted that the child could suffer serious consequences if they found out. Spencer J found that the circumstances of ABC were wholly different and exceptional from the present case. In particular, he noted that:
Timing of application
The application was made at the start of day 1 of the quantum trial. Spencer J noted that this did not give the Press Association enough time to make properly considered submissions.
He also noted that it effectively denied the Claimant of an important choice – had the Claimant known before the trial that she would not be granted anonymity, this may have affected her decision to settle the claim out of court.
He thus warned claimants and their advisers against assuming that a court will ‘nod through’ such applications.
General Medical Council v X [2019] EWHC 493 (Admin)
The High Court considered an application for anonymity made by Dr X.
The Medical Practitioners Tribunal Service (‘MPTS’) had upheld allegations of sexual misconduct and dishonesty made against Dr X, a neonatologist. The allegations arose out of an online sexual conversation which occurred between Dr X and an adult in a paedophile vigilante group who had pretended to be a child aged 15.
The MPTS imposed a 12-month suspension on Dr X’s registration subject to further review. Dr X then requested the GMC not to publish any part of the determination other than the fact of the suspension for 12 months on the grounds of misconduct.
There was little dispute between the parties as to the legal principles. It was agreed that Article 2 ECHR (right to life) is engaged where there is a real and immediate risk to the life of an identified individual, and it is known or ought to be known to the relevant authority (the Osman duty). The GMC also accepted that its duty to publish MPTS findings “in such manner as they see fit” was subject to its obligations under the Human Rights Act 1998 as a public authority.
The application
On behalf of Dr X it was argued that the psychiatric evidence showed that Dr X suffered from depression and was at a significant and continuing risk of committing suicide. In particular, Dr X was concerned about the public disclosure his/her sexuality and the reaction from family members. This was later expressed as a more general concern about publication of the sexual misconduct allegations. Further it was argued that the medical evidence demonstrated that Dr X’s risk of suicide was so high that publication would be a breach Article 2 and that a fair balance could be struck because the GMC would retain the power to provide specific information to specific persons (e.g. an employer) about Dr X’s misconduct findings.
GMC’s resistance to the application
The GMC accepted that the psychiatric evidence showed that Article 2 was engaged. However, it submitted that the court must balance the risk of suicide against the public interest in publication. In particular, there was a very strong public interest in maintaining public confidence in the integrity of the register. If the register simply stated that Dr X had been suspended but provided no reasons, confidence in the integrity of the register would be damaged. Further, it was argued that redactions as to gender and sexuality were sufficient. Finally, the GMC argued that an anonymity order might prejudice the position on publication of the further review in 12 months.
The judgment
Soole J agreed that the court must carry out a balancing exercise and accepted that there is a weighty public interest in the integrity of the register. However, this was not absolute and he ultimately found that, in this case, there was clear and cogent medical evidence in support of the real and immediate risk of Dr X’s suicide if publication occurred. On the particular facts of this case, this risk outweighed the public interest and publication would therefore breach Article 2.
Comment
These two interesting decisions on anonymity orders highlight a range of interesting issues. Perhaps the most important factor in explaining the differing outcomes in each case is the difference in medical evidence. In Dr X’s case, they had provided specific, compelling and clear evidence as to Dr X’s risk of suicide were the anonymity order not granted. By way of contrast, in Zeromska-Smith, the Claimant’s solicitor had asserted in a witness statement that the Claimant would be at an increased risk of suicide were the order not granted but there did not appear to be any medical evidence adduced to support this claim. The Claimant could therefore not engage Article 2 which would have likely provided a much heavier counterweight to the public interest considerations than Article 8.
