M v Press Association [2016] EWCOP 34

​Hayden J heard the application for the continuation of a reporting restriction order (RRO) when M died following the withdrawal of life-sustaining treatment by means of clinically assisted nutrition and hydration. The application was refused, the judge saying that "the balance here weighs more heavily in favour of freedom of expression".

Background
This judgment follows and should be read in conjunction with Re N [2015] EWCOP 76. In that case it was decided it was in N's best interests to withdraw the clinically assisted nutrition and hydration. A RRO was made to last until seven days after N's death and subsequently further extended to fourteen days after the judgment in V v Associated Newspapers Ltd [2016] EWCOP 21. Re V also provides useful commentary and should be considered alongside this judgment. N died on 16 December 2015. 

On 4 May 2016, relying on Re V, M applied to vary the RRO and extend the duration “until further order of the court”. This application was opposed by the press and listed for a hearing by Hayden J.

In Re V Charles J considered the case attracted considerable adverse media attention and the focus should instead be on the capacity of the individual to make decisions about medical treatment and any consequences coming from whether or not the individual had capacity to refuse life-saving treatment. In M's case, however, the reporting was confined almost entirely to these issues. Her case illustrated an evolution in existing case law by extending declaratory relief for those in a minimally conscious state. These had previously been limited to those in a vegetative state only.

Decision
Hayden J refused the application. The Judge followed the guidance outlined in S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 and balanced competing needs of the family's wishes and feelings against the public interest. The principle of open justice was highlighted and Hayden J stated it was: "by way of parity of analysis in the media’s right to report Inquests and I would add the public’s right to receive such reports."

It was held that whilst M's family were understandably grieving, the public interest outweighed the introduction of her name into the public domain and would have limited impact on privacy or Article 8 rights.

Discussion
It was acknowledged that the balancing exercise was one of the most difficult decisions to make as a Judge. It is becoming increasingly difficult to define in medical terms what constitutes life or consciousness and therefore, as Hayden J explained, the public is entitled to be fully informed. Inevitably there is a risk that: "both the integrity of the process and the proper dissemination of the information may be compromised by cloaking the parties with anonymity."  

This case will assist where the facts are so strikingly similar that they need not be distinguished. As in Re V, this judgment has highlighted the importance of analysing cases on a fact specific basis. However, Hayden J commented that where a balancing act of competing rights and interests is carried out, it is important to remember that rights in contemplation are of a wholly different complexion. This involves "the juxtaposition of the intensely personal (grief, loss, privacy) alongside the conceptual (the public interest, the freedom of the press, the effective dissemination of information, the administration of justice)." Fundamentally the balancing process in cases such as this requires an inevitable pull to the protection of vulnerable parties and this must not be overlooked.

Read the full text of the judgment on Bailii