PH & Anor v Brighton And Hove City Council

Factual and Procedural Background

This opinion concerns an application to disapply anonymity provisions contained in a Transparency Order originally made on 13th August 2019 in substantive Court of Protection proceedings involving an individual referred to as the Subject. The Transparency Order restricted publication or communication of information identifying the Subject, their family members, and their location or care arrangements. The application was made by media organizations seeking to lift these anonymity restrictions to allow naming and reporting. The substantive proceedings relate to the Subject's long-term detention and care arrangements, with hearings scheduled until May 2022. The application was opposed by the current care provider (Third Respondent) and the Subject's litigation friend, the Official Solicitor, while supported by the Subject’s parents (Applicants) and the media applicants.

Legal Issues Presented

1. Whether the anonymity provisions in the Transparency Order should be disapplied to allow the media to identify the Subject and their family in reporting on the Court of Protection proceedings.
2. How to balance the competing rights under Article 8 (right to privacy) and Article 10 (freedom of expression) of the European Convention on Human Rights in the context of these proceedings.
3. Whether the existing Transparency Order appropriately protects the Subject’s interests and care arrangements or whether lifting anonymity would better serve public interest and the interests of the Subject and their family.

Arguments of the Parties

Media Applicants' Arguments

• The Subject’s situation has been widely reported previously, including identification by name, photograph, and details of care location, thus anonymity restrictions now prevent reasonable reporting and create a "black hole" of information.
• There is a strong public interest in responsible reporting on the Subject’s prolonged detention and care, which raises wider issues about care for persons with learning disabilities.
• The Subject’s parents support the application and wish to raise awareness of their struggles and the public interest matters involved.
• The media deny any intention to engage in sensationalism or witch hunts and commit to responsible, fair, and accurate reporting.
• Publicity is said to be advantageous for future care planning and would not adversely affect the Subject or carers.

Applicants' (Subject's Parents) Arguments

• Support the media application, emphasizing the importance of public scrutiny of care arrangements and the Transforming Care agenda.
• Argue that the Subject lacks capacity but would wish for efforts to highlight his situation publicly.
• Assert no evidence of adverse effects from prior publicity and that publicity is beneficial to the Subject’s interests.
• Highlight ongoing strategic support but stress that more transparency is necessary.

Third Respondent's (Care Provider) Arguments

• Maintaining anonymity is essential to protect the Subject’s privacy and care arrangements.
• There is no evidence that the Subject wishes to waive anonymity, and publicity could destabilize care provision and harm the Subject.
• Previous publicity has already caused difficulties, including carers requesting not to provide care and increased distress for the Subject and other patients.
• Public interest can be met without identifying the Subject, preserving the usual anonymity protections in Court of Protection proceedings.

Official Solicitor's Arguments

• Opposes the media application, supporting the existing Transparency Order as correctly balancing privacy and freedom of expression.
• Emphasizes the lack of evidence that the Subject wishes to waive anonymity and concerns that publicity could interfere with care arrangements.
• Acknowledges public interest but insists it can be met within current anonymity restrictions.
• Opposes requests for inspection or copying of documents beyond court orders and position statements.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the established balancing test between Articles 8 and 10 of the European Convention on Human Rights, as articulated by Lord Steyn in Re S. Factors favoring lifting anonymity included the significant public interest in the Subject’s prolonged detention, the support of the Subject’s parents for transparency, and the extensive information about the Subject already in the public domain, including a detailed 2004 judgment. The court was concerned that maintaining the Transparency Order effectively created an information vacuum that could lead to misinterpretation rather than informed debate. The "humanizing" effect of naming the Subject was acknowledged but given less weight compared to the other factors.

Conversely, factors favoring retention of anonymity included the usual presumption of anonymity in Court of Protection proceedings, the absence of evidence that the Subject wished to waive anonymity, and concerns raised by the care provider about potential destabilization of the Subject’s care arrangements and increased distress. However, the court found the evidence of risk to care stability insufficiently specific or persuasive to outweigh the factors favoring transparency. The court also accepted assurances of responsible media reporting and declined to accept speculative risks of adverse impact on care.

Balancing these considerations, the court concluded that lifting the anonymity provisions was appropriate, subject to a short delay to allow care providers to prepare for the change in publicity.

Holding and Implications

The court GRANTED the media application to disapply certain anonymity provisions of the Transparency Order with effect from 6pm on 24th November 2021.

This decision permits the Subject’s parents to disclose specified court documents to the media, who may publish or communicate their contents, including court orders, position statements, and application grounds related to the Subject’s care proceedings.

No order for costs was made.

The direct effect is to enable responsible public reporting that identifies the Subject and their family in connection with these proceedings, thereby facilitating public scrutiny and awareness of the issues surrounding the Subject’s long-term detention and care. No new legal precedent was established; rather, the decision applied established principles to the facts of this case.