Sorry it has been a while. We’ve got some plans to migrate this blog over to a new site hosted on the Nottingham university website and generally make it bigger and better and I thought I’d add some blog posts ahead of time. I am trying to convince Peter Bartlett to share his views on the judgment in MH v UK.
In the meantime I’ve been trying to dissect the role autonomy plays in current judicial decision-making and formulate a coherent account of the role autonomy should play in how judges make substitute judgments on behalf of adults. One issue that arises remarkably infrequently in the caselaw is the relationship between autonomy and privacy…
This is surprising for a couple of reasons. One is that secondary commentators often cite Art 8 and the right to respect for private and family life as the source of a positive ‘right to autonomy’ in English law. I think this is a pretty broad reading of Pretty v UK and it is typically irrelevant to adults affected by the operation of the MCA where the powers to make decisions affecting their lives flow from s.16 MCA and any positive duties on the part of public authorities flow from s.16 read in conjunction with s. 1 and s.4 of the same Act rather than reading a positive duty to provide services into Art 8 ECHR. There was clearly a negative right to autonomy, narrowly construed as a right to non-interference with the body dating back to all the medical treatment consent cases in the 1990s but it did not go as far as Pretty in implying that a state might have a duty to carry out, or at least consider carrying out, an action such as assisting dying in order to promote autonomy. Nevertheless Art 8, privacy and autonomy often get jumbled up and blurted out together without precise deconstruction of what these various terms mean so one might expect to see more discussion of the privacy interests of adults lacking capacity in both the caselaw and the secondary literature.
A better account of why autonomy and privacy are linked is that Lord Hoffman linked information privacy to individual autonomy in his judgment in Campbell v MGN Ltd. Famously he said that ‘What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity…the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.’ This is the leading judgment on the right to privacy in English law and that particular line gets quoted all over the shop, importantly in the report of the Leveson enquiry. The idea that the ‘good’ of privacy is the power to control or choose how information about one’s life is disseminated whether acquired in a public or private setting can be traced back further to David Feldman’s highly influential article ‘Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty’ (1994) Current Legal Problems 47(2) 41-71.
So privacy is not synonymous with autonomy, but in English law (unlike US law) it may help make autonomy possible and disregard for privacy may undermine autonomy. If we care about the privacy of celebrities for this reason we should presumably care about the privacy of people lacking capacity for the same reason.
Of course, people lacking capacity technically enjoy precisely the same rights to information privacy as everyone else. But there are two practical caveats to this. One is that where information about their care and treatment needs to be shared between multiple agencies to be effective the risk of sensitive data loss is multiplied. Another is that they are, especially if they lack litigation capacity, unlikely to be able to vindicate their rights under the Data Protection Act or common law if an agency or individual fails in its duties. So they may be more than usually vulnerable to breaches of privacy.
As a result we should place a high value on protecting the needs for privacy of adults lacking capacity. Shrewd readers will spot where this is going…
In July the President of the Court Protection and Family Division LJ Munby published draft guidance on transparency in family court and court of protection proceedings. He wants to clarify when judges should publish their judgments in the family courts and CoP. At present Rule 91(2) of the Court of Protection Rules grants judges a wide-ranging to discretion to order the publication in whole or in part of any judgment they hear. There have been significant protests about judges abusing their discretion to exclude the media from hearings and preventing them from publishing information about the evidence heard in court or the judgement. The Independent newspaper went as far as taking a test case to the Court of Appeal in A v Independent News and Media. The concerns about the CoP have been minimal compared to the far greater and more long-standing concerns about secrecy in the family courts violating the principles of open justice.
The new guidance which applies to both family courts and the CoP states that judgments should always be published where they concern:
‘(ii) any order authorising a change of the placement of an adult from one with a family member to a home;
(iii) any order arguably involving a deprivation of liberty;
(iv) any order involving the giving or withholding of significant medical treatment; or
(v) any order involving a restraint on publication of information relating to the proceedings.’ (Para 16)
Or where it is otherwise in the public interest to publish (para 18).
Judges should consider publication where a media outlet applies for it and the judge has considered the obligations arising under the ECHR, especially freedom of expression, the right to a fair hearing and the right to respect for private and family life (para 17).
There is a final complication, which is that the provisions concerning hearings regarding vulnerable adults with capacity heard under the inherent jurisdiction of the High Court and the rules regarding publication of Mental Health Tribunals are subject to separate guidance, so conceivably three sets of guidance will apply to three sets of adults despite the obvious similarities between the three populations (a hearing concerning deprivation of liberty could arise in any of these jurisdictions). In all cases names, and possibly locations will continue to be removed pre-publication unless they are already in the public domain.
What is missing entirely is any discussion of how publication affects the privacy interests of adults lacking capacity. As any researcher or health or social care professional knows removing names from a document and anonymisation are not the same activity. The narrative data a case contains about an individual’s life also makes them highly identifiable, anyone who later meets P and also reads about the facts of P’s case in the media or in the court report is likely to be able to link the two.
This means the removal of names, the only prospective safeguard in place at point of publication, has no retroactive effect. In practice once a judgment is published online, especially one which attracts significant commentary and thus remains near the top of search engine rankings, the potential for disclosure of identity to arise inadvertently to possible future employers, friends or partners grows and grows and there are no effective mechanisms the court can employ to prevent this. As a parlour game try locating some recent judgments of the CoP with some basic information contained in the judgment which might also be given on P’s CV or online dating profile.
I do not think that judgments of the Court of Protection should never be published. Open justice matters to adults lacking capacity, to their families, to judges and to the media. This is not a case of competing vested interests, as the cases concerning celebrities versus newspapers are often characterised. Instead adults lacking capacity as a population may benefit from open justice, but that is no reason why any given individual whose capacity to consent to sex has been called into question should have intimate details of their sexual history publicised. This is especially the case if the court has established the individual lacks litigation capacity and cannot autonomously challenge either the collection of this information or its disclosure.
The proposed guidances places too high a value on open justice without adequate consideration of the value of privacy to the life of the person lacking capacity or the possibility of harm arising from publication. The difficulty is that applying a principled approach to the guidance would be difficult, because the cases that are most likely to undermine privacy if they are published are also those cases which address questions which it is in the public interest to report.
Better guidance would recognise that privacy is a significant interest of adults subject to court of protection proceedings and that the significance of the interest affected, the likelihood of harm arising from publication and the scale of the public interest, especially regarding new developments in the law all need to be weighed before judicial discretion is exercised.