Abbasi and Haastrup: to name or not to name

Today is an important day - it marks the handing down of the long-awaited judgment of the Supreme Court in the joined cases of Abbasi and Haastrup.

We, with Alex Ruck Keene KC (Hons), represented the Faculty of Intensive Care Medicine as an intervener in the appeal.

The Headlines

• This ruling has wide-reaching implications for how cases about health and care decision-making for those who can’t decide themselves are conducted.
• Its effect is likely to be felt across our health and care sectors.
• Professionals engaged in providing that care and treatment, and involved in these cases, are likely to be able to be identified publicly - including in media reporting and on social media – following the conclusion of the proceedings (and any subsequent ‘cooling off’ period).
• This is a change to the status quo.
• The ‘cooling off’ period is likely to be weeks, rather than months or years, after the conclusion of proceedings.
• The bar to achieve a continuation of an injunction protecting the identity of treating organisations and/or treating clinicians, after the conclusion of the proceedings and/or the death of the patient, is a high one. It seems likely that it will be hard to be achieved.
• In reality, to continue injunctions protecting the identity of treating clinicians, it is going to require individual clinicians – or a representative clinician – to make an individual claim themselves, supported by evidence of the specific impact on their rights in the particular circumstances.

Wider Reaching Implications

The Supreme Court’s judgment focuses on injunctions prohibiting identification of professionals involved in end-of-life treatment decision cases for children. In particular, it considered the cases concerning Zainab Abbasi and Isaiah Haastrup – and the appeals brought by Newcastle Upon Tyne Hospitals NHS Foundation Trust and King’s College Hospital NHS Foundation Trust (respectively) to the Court of Appeal’s decision.

However, injunctions with similar effects are also utilised in cases in the High Court for vulnerable adults and in the Court of Protection for adults and young people who lack capacity to make such decisions for themselves.

Following the Court of Appeal’s decision in the Abbasi and Haastrup cases, we saw the principles of the judgment being applied across those wider jurisdictions - and it’s reasonable to expect the same will apply with the Supreme Court’s judgment.

For those reasons, this article uses the term patient rather than child - and recognises that the treatment decisions may be being made by a broader set of treating organisations than just NHS Trusts. In addition, where we use the term ‘treating clinicians’ - we use this to incorporate professionals who provide second opinions and those who might be consulted about a potential transfer of the patient. 

What are these injunctions?

These injunctions commonly protect the identity of the patient, their family, the treating clinicians and, sometimes, the treating organisation or location (depending upon whether identification of these would enable jigsaw identification of the patient or others whose identity is protected). They operate by prohibiting publication (which is given a broad definition and essentially encapsulates communicating) of any material that might lead to the identification of the persons or organisations whose identity is protected. Often, they are not time limited - and apply in perpetuity. 

There are three sets of interests being protected by the injunctions:

1. The patient’s interests - this is in a number of ways:
   1. in confidentiality of their medical information;
   2. in preventing the harm that they might suffer if treatment is deleteriously affected by abuse of the clinical team; and/or
   3. in ensuring that there is no interference with the court process that is being operated to determine their best interests.
2. The treating organisation’s interests in being able to perform its statutory functions without interference, as well as, its duties as an employer to seek to protect its employees from the risk of harm or abuse.
3. The treating clinicians’ interests - in their rights to privacy and to be free from abuse.

Those interests are often interlinked and intertwined. One often flows into the other. In order to protect the patient’s interests, the treating clinicians’ interests have to be protected and in turn the treating organisation’s interests are protected. Whilst the proceedings are ongoing, and the patient remains alive, often the protection of the patient’s interests incidentally leads to the protection of the interests of the treating clinicians and the treating organisation.

The scope of the injunctions in these types of cases is unusually broad in terms of the category of persons who are bound by it. Usually, an injunction is made against a known, and specified, person or group of persons. However, in these cases, in order to be effective, the injunctions have to be extremely broad ranging and bind the world at large. This is because the people who may potentially cause the harm that the injunction is seeking to prevent (namely the abuse of persons involved in the proceedings) are often unknown entities at the time that the injunctions are sought: 

• It is not possible to predict in advance who, from the wider public, might be a proponent of abuse.
• It’s also often not possible to predict whether or not a particular case will engender media and public interest - and if it does, the extent to which that will go and whether it will result in actions such as protests, social/broader media campaigns and abuse.
• The nature of our online world means that even when a category of persons might become identifiable (from their posts or campaigns), the anonymity of the actual individuals concerned can be preserved by pseudonyms or anonymous posts. 

As a consequence, the injunction interferes with the rights to freedom of expression of many:

• sometimes, the patient themselves - who may want to speak publicly about their case;
• the patient’s family – who may, for example, wish to articulate their concerns about how decisions are being taken - or wish to crowd-fund for legal costs;
• the media;
• members of the public who may wish to comment on the proceedings. 

These injunctions are unusual in another way. Often, injunctions about reporting of court cases are limited to protecting information about the proceedings themselves. However, these injunctions are broader - they are primarily aimed at protecting the much wider category of information about the patient, their treatment and the persons and organisations that are providing that care – including the actions of those persons outside of the court room.

Does the Court have the jurisdiction to make these types of injunction?

The answer is clear and categorical: yes.

There are a number of jurisdictions that the High Court can use to make these types of injunctions. They’re not mutually exclusive and a number may co-exist.

Parens Patriae Jurisdiction

Historically, these injunctions have been made under the Court’s parens patriae jurisdiction (the jurisdiction for protecting those who cannot protect themselves).

The Supreme Court has confirmed, so that it is beyond any doubt, that the High Court has the power to make these types of injunctions under its parens patriae jurisdiction.

However, these Supreme Court is also clear that the parens patraie jurisdiction centres and focusses solely on steps that are necessary to protect the patient. This means that:

• the interests of the treating organisation and of the treating clinicians do not create, in and of themselves, a power to grant these injunctions under the parens patriae jurisdiction.
• the power to grant an injunction under the parens patriae jurisdiction which protects the interests of the treating organisation and/or the treating clinicians only arises if it is necessary to protect those interests in order to protect the interests of the patient.
• for any injunctions being granted under the parens patriae jurisdiction, the scope of whose identity is to be protected, must be carefully considered:
  • it must be capable of being said that their identity has to be protected in order to protect the patient’s interests.
  • there must be a link to the patient’s interests.
  • it appears to us that it is likely that a strong argument could be made for the need of protecting professionals who are currently (and have previously) treating/ed the patient, providing second opinions or being consulted on whether they would potentially accept a transfer of the patient.
  • there would need to be consideration on a case by case basis.
• the High Court’s power to grant these injunctions under the parens patraie jurisdiction only exists when the patient is alive.

In his additional judgment, Lord Sales properly reflected that it cannot always be said to be the case that the rights of the treating clinicians will always align with the need to protect the interests of the patient. For example, in some cases, the patient may not want anonymity – and may want the clinicians to be identified. 

As a result, he suggests caution should be exercised in overly relying on the parens patriae jurisdiction to incidentally protect the rights of the clinicians.

Inherent Jurisdiction to Protect the Administration of Justice

The High Court has an inherent power to take steps to protect the administration of justice. The Supreme Court recognised that this would be a valid basis upon which to make these injunctions during the currency of proceedings.

The ‘Broadmoor Jurisdiction’

A potential alternative jurisdiction is what the Supreme Court has dubbed the ‘Broadmoor jurisdiction’. As described by Lord Woolf MR in the earlier case of Broadmoor Special Hospital Authority v Robinson [2000] QB 775:

"if a public body is given a statutory responsibility which it is required to perform in the public interest, then, in the absence of an implication to the contrary in statute, it has standing to apply to the court for an injunction to prevent interference of its public responsibilities and the courts should grant such an application when ‘it appears to the court to be just and convenient to do so’’

To rely on this jurisdiction, the treating organisation would have to demonstrate substantial risk to the performance of its public responsibilities. This can be quite a high threshold. 

If met, however, the treating organisation could apply for an injunction to protect the anonymity of treating clinicians (employed by it or otherwise providing it with their services) where their identification could have consequences which interferes with its performance of its statutory duties.

Jurisdiction arising from a Specific Cause of Action to Protect Individual Rights

The Court has jurisdiction to make injunctions in relation to claims brought under domestic law for specific causes of action.

For the individual treating clinicians, there may be a number of causes of action under domestic law to protect their rights - such as defamation, harassment, breach of confidence or invasion of privacy. It is possible for an application for an injunction to be made on a preventative basis (a quia timet injunction). 

However, the application for the injunction on this basis would have to be brought by the individual clinician themselves. 

The Supreme Court considered that it could be brought on a “representative basis” – i.e. where one clinician makes the application on behalf of a group of clinicians. 

It also recognised that at the outset of these types of cases, the clinicians’ attention is properly focussed on the care for the patient and putting together the evidence required for the substantive proceedings. As such, the Supreme Court encouraged a degree of flexibility, that the treating organisations ought to be able to support individual clinicians in bringing an appropriate application to be joined to the treating organisation’s application under the parents patriae jurisdiction, the inherent jurisdiction for the protection of administration of justice or the Broadmoor jurisdiction.

Where an individual brings such a claim, the Court will have to consider any competing Convention rights (such as Article 8 and Article 10). Relevant factors that are likely to be taken into account when balancing those rights include:

• Protection of clinicians working in public hospitals from unfounded accusations is a legitimate aim for interfering with the right to freedom of expression – however the protection must not:
  • impose a disproportionate restriction on debate on matters of general public interest;
  • prevent responsible criticism, including personal criticism, where there is a legitimate concern.
• The potential impact of attacks on clinicians on morale and recruitment are relevant.
• The treatment of patients in public hospitals is a matter of legitimate public concern – particularly where there are conflicts as to the treatment.
• Clinicians in public hospitals are public figures with official functions – and therefore, the limits of acceptable criticism are wider than in the case of private individuals – it is relevant that:
  • clinicians voluntarily give their names to patients and families; and
  • many clinicians, particularly senior clinicians, have their names and specialisms published on their employer’s website.
• The risk of a “social media storm” are likely to diminish with the passage of time – accordingly, the weight attached to the consequences of such a storm will be given diminishing weight as time passes.
• To be successful, a clinician would need to demonstrate a real risk of the wrongful conduct that forms the basis of their cause of action (e.g. the potential harassment, defamation, invasion of privacy) materialising.
• Where there has been an indication that specific clinicians are intended to be identified, it is less likely that there will be a sufficient risk to warrant injunctive protection for other clinicians.
• The need for any restriction of freedom of expression must be established ‘convincingly’. A permanent restriction would require compelling circumstances.

Court’s Equitable Jurisdiction

The High Court has an inherent and unlimited equitable power to grant injunctions (subject to any statutory constraints) – reiterated in s.37(1) of the Senior Courts Act.

The Supreme Court did not rule out that there may be some circumstances where it would be proper for the High Court to exercise this jurisdiction to ensure that there was protection of Convention rights. However, it noted that ordinarily, a claimant would use a cause of action under domestic law (e.g. the parens patriae jurisdiction, the inherent jurisdiction in protecting the administration of justice, the Broadmoor jurisdiction or the jurisdiction arising from specific causes of action to protect individual rights) instead – and s.37 shouldn’t be used where there are other routes that can effectively provide protection.

Where does this take us?

The upshot:

• It is likely that it will be possible to continue to obtain injunctions which protect the identity of the treating clinicians and/or treating organisations during the currency of proceedings.
• Consideration will need to be given about which jurisdiction (or a combination thereof) the application for an injunction is made under:
  • parens patriae jurisdiction – the treating organisation will need to demonstrate that there is a need to protect the identity of the treating clinicians and/or the treating organisation in order to protect the patient’s interests;
  • inherent jurisdiction for the administration of justice – in practice, this often goes hand-in-hand with an application under the parens patriae jurisdiction;
  • Broadmoor jurisdiction – the treating organisation will need to demonstrate that there is a substantial risk of interference in its delivery of its public functions if the injunction is not granted. If the treating organisation seeks to protect the identity of treating clinicians under this jurisdiction, it will have to be demonstrated that identifying the treating clinicians will interfere with the treating organisation’s performance of its statutory functions;
  • specific cause of action to protect the rights of individual treating clinicians – in which case, the treating clinicians will need to demonstrate what the cause of action is and the anticipated harm – and their individual claim is likely to be joined to the wider proceedings.
• Treating organisations need to give careful consideration as to the basis or bases of such applications – and may, at the outset of proceedings, need to consider supporting individual clinicians (or a representative clinician) to make an individual application to be joined to the wider application for an injunctions.
• When the application for an injunction is made at the outset of, or during the currency of, proceedings, it is likely that the Court will be satisfied by “generic” evidence – i.e. evidence of the generic risk that in these types of cases, there is a risk that the treating clinicians will receive abuse, which may negatively impact upon their delivery of care for the patient and/or other patients, which in turn makes it impacts the patient’s rights and the treating organisations’ ability to deliver its public functions.
• The Supreme Court has recognised that, practicably, there would need to be a period during which the treating organisations and/or treating clinicians could take advice on whether they have a cause of action and put together the relevant evidence that would be required to support such an application to continue or extend the injunction before the injunction expires.
• It is appropriate, and there is jurisdiction, for these injunctions to continue to apply during a ‘cooling off’ period after the proceedings are concluded or the patient dies:
  • The duration of the ‘cooling off’ period will vary on a case by case basis.
  • It is likely to be weeks rather than months or years.
• If the patient dies, the parens patriae jurisdictional basis for the injunction no longer exists.
• If the patient does not die, even if the proceedings are concluded, the parens patriae jurisdiction remains – however:
  • in order to justify the continuation of an injunction that protects the identity of the treating clinicians and/or the treating organisation in order to protect the patient, the treating clinicians and treating organisation would need to continue to be caring for the patient;
  • when the patient is no longer being cared for by those clinicians or organisation, the parens patriae jurisidiction would also no longer exist in relation to protecting the identity of those clinicians or that organisation.
• Treating organisations will have to work closely with treating clinicians to consider whether an application to extend the duration of the injunction after the conclusion of proceedings and/or the patient’s death is appropriate in each particular case.
• The interests of the treating organisation and the treating clinicians may be different - so there will need to be careful consideration of whether separate legal advice is required.
• Individual clinicians need to be given notice of the injunction and its expiry so that they can take advice as to whether they want to apply to extend or for a fresh injunction.
• Applications for such injunctions – and to vary or discharge them – should be made on notice to the media.
• The evidence that will be required to extend an injunction after the conclusion of proceedings and/or the patient’s death will need to be “specific” rather than “generic”:
  • For a Broadmoor jurisdiction injunction, the treating hospital will not be able to solely rely on the experience in other cases, or a general concern about the potential impact of publicity on morale or the willingness of clinicians to practise in that specialism;
  • For a specific cause of action injunction brought by the individual clinicians, the individual clinician has to bring their own claim. Therefore, they either have to join the proceedings or bring their own fresh claim for a new injunction before the existing injunction lapses.

How does this practically work?

Practically, the Supreme Court’s suggestion is that:

• At the outset of proceedings, or during the currency of proceedings, the treating organisation makes the application for the injunction – either on the basis of the parens patriae jurisdiction or the Broadmoor jurisdiction (or both).
• The treating organisation, with agreement from the treating clinicians, could also undertake the preparatory work required for an application by the treating clinicians for a quia timet injunction. The treating organisation could prepare the “generic” evidence required to support the application made at the outset of, or during the currency of, proceedings.
• The treating organisation submits its application at the same time as it submits an application for the treating clinicians and joins the two applications together.
• After proceedings have ended, the treating organisation and the treating clinicians will need to consider whether they need or want to make an application to continue the injunction for longer than the “cooling off” period.
• The basis on which the continuation of the injunction is sought could be:
  • the parens patriae jurisdiction, if the patient is alive and continues to receive care at the treating organisation.
  • the Broadmoor jurisdiction if either the patient is alive and continues to receive care at the treating organisation or if the organisation can show that there remains a substantial risk of interference with its statutory duties even though the patient has died or if the patient is alive, is no longer receiving care there.
  • the clinicians’ individual rights - one treating clinician can be identified to be joined as a party to the proceedings as a representative of the other treating clinicians (although, it’s likely that evidence will be required from every individual clinician who is seeking to assert their rights).
• The participation of the treating clinicians could properly be funded by the treating organisation.

The Decision in Abbasi and Haastrup

• There was a lawful basis for making the injunctions during the currency of the proceedings – namely, the parens patriae jurisdiction.
• The application to extend the injunctions following the conclusion of the proceedings and the death of the children were brought by the Trusts solely on the basis of protecting the rights of the individual clinicians. The Trusts had no standing to make those applications. They should have been brought by the individual clinicians.
• The evidence in the lower Courts of the anticipated “wrongful conduct” forming the basis of the applications to continue the injunctions did not demonstrate a “real risk” of such wrongful conduct materialising.
• Even if the evidence had demonstrated a real risk of the wrongful conduct materialising, the Supreme Court considered that it would have been difficult to justify the interference with Article 10 rights by continuing the injunctions because:
  • the publication of the concerns of Zainab and Isaiah’s parents would contribute to a debate of general interest;
  • the clinicians were public figures vested with official functions and therefore the limits of acceptable criticism were accordingly wider than in the case of private individuals;
  • the evidence did not suggest a ‘real and continuing threat of a serious nature’ to the clinicians – which appears to be the threshold that would need to be met to justify the interference with Article 10.

What remains to be seen?

Whilst the Supreme Court’s decision clarifies a number of matters, there are some queries which remain to be determined – and no doubt may fall the subject of future case law:

1. What about the continued anonymity of the patient and their family? 

If the injunction is limited in time to the expiry of the ‘cooling off’ period, what happens about the protection of the identity of the patient and their family?

Whilst the Abbasi and Haastrup families wished to be able to identify their children and their family, this is not necessarily the case for all patients and all families.

The practice, to date, has been that the anonymity of the patient and their families continues in perpetuity – unless there is a specific application to lift that anonymity.

But if there is no jurisdiction under the parens patriae, following the patient’s death, what happens?

2. Do all of the jurisdictional bases for the injunctions apply to vulnerable adults?

The case was about children – therefore, it does remain to be seen whether all of the jurisdictional bases apply to vulnerable adults; in particular the parens patriae jurisdiction. 

There are a number of similarities in the proceedings concerning children and vulnerable adults – and previously, we have seen that the principles from the children’s case have been applied in the jurisdictions for vulnerable adults – but, consideration will have to be given about the jurisdiction for vulnerable adults, particularly in the Court of Protection. There may be alternative bases for the injunctions.

3.    What about independent health providers?

Much of the Supreme Court’s judgment focussed on the rights and responsibilities that arise on treating organisations as public bodies.

It is also not clear whether, an independent treating organisation, that is not a public body, could rely on the Broadmoor jurisdiction. This is perhaps likely to become an issue of increasing importance if the independent sector continues to deliver NHS services.

It appears to us that consideration would have to be given as to whether the independent health organisation ought properly be considered a public body carrying out tasks and functions of a public nature - and that would turn on the facts of the individual case.

Where can I find out more?

Alex has also written an article – which can be found: Serious medical treatment cases and naming clinicians – the Supreme Court decides – Mental Capacity Law and Policy.

We are also hosting a lunchtime webinar on 9 May 2025 to discuss the implications of the judgment. You can register here.