Parents of two deceased children sought discharge of injunctions preventing them from naming clinicians involved in their children’s end-of-life care. The Supreme Court dismissed the NHS Trusts’ appeal, holding that after proceedings end, clinicians must assert their own privacy rights rather than relying on trusts to do so on their behalf.
Background
This appeal concerned two conjoined cases involving gravely ill children whose parents disagreed with NHS clinicians about the withdrawal of life-sustaining treatment. In the Abbasi case, Zainab Abbasi was born in 2013 with a rare neurodegenerative disease. Newcastle upon Tyne Hospitals NHS Foundation Trust issued proceedings in August 2019 seeking a declaration that withdrawal of life-sustaining treatment was in Zainab’s best interests. An injunction was granted on 12 September 2019 prohibiting identification of the child, her parents, the hospital, and four named clinicians. Zainab died on 16 September 2019 before the full hearing could take place. In the Haastrup case, Isaiah Haastrup was born in February 2017 and suffered grave brain damage due to clinical negligence during birth. King’s College Hospital NHS Foundation Trust sought a similar declaration. An injunction was granted on 6 October 2017 protecting a much wider class of clinical and non-clinical staff. Isaiah died on 7 March 2018 following the court’s grant of the declaration sought.
Both sets of parents applied in August 2020 for the discharge of the injunctions, wishing to speak publicly about their experiences and to name the clinicians involved. The Trusts resisted, arguing that disclosure would expose clinicians to harassment and abuse, violating their Article 8 rights. The President of the Family Division dismissed the parents’ applications. The Court of Appeal reversed that decision and discharged the injunctions. The Trusts appealed to the Supreme Court.
The Issue(s)
The principal issues were:
- Whether the High Court had jurisdiction to grant injunctions protecting clinicians’ identities in such proceedings, and on what legal basis;
- Whether the injunctions could properly be continued after the children had died and proceedings had effectively ended;
- Who had standing to seek the continuation of the injunctions — specifically, whether NHS trusts could assert the clinicians’ Convention rights on their behalf;
- Whether the injunctions were compatible with the principle of open justice;
- How the balance between Article 8 (right to private life) and Article 10 (freedom of expression) of the European Convention on Human Rights should be struck in these circumstances.
The Parties’ Key Arguments
The Parents
The parents contended that the injunctions were illegitimate restrictions on their freedom of expression. They wished to publicise their accounts of what happened to their children, naming individual clinicians, in order to stimulate public debate and accountability. They argued that the Trusts lacked standing to assert the clinicians’ Convention rights, that the High Court had no power under the inherent jurisdiction to issue contra mundum injunctions restricting publicity in open court proceedings, and that the interference with their Article 10 rights was not “prescribed by law” within the meaning of Article 10(2).
The NHS Trusts
The Trusts argued that section 6(1) of the Human Rights Act 1998, combined with section 37(1) of the Senior Courts Act 1981, obliged the court to grant and maintain injunctions protecting clinicians’ Article 8 rights, even where the clinicians were not themselves parties. They relied on generic evidence from other high-profile cases (Charlie Gard and Alfie Evans) demonstrating the risk of social media abuse directed at clinicians.
Interveners
Professional bodies including the British Medical Association, Royal College of Nursing, and others argued that without indefinite anonymity, staff morale would be undermined and recruitment to relevant specialties would suffer.
The Court’s Reasoning
Jurisdiction
The Supreme Court (Lord Reed and Lord Briggs, with whom Lord Hodge and Lord Stephens agreed) conducted a comprehensive review of the jurisdictional bases for such injunctions. The Court identified three available sources of jurisdiction:
- The parens patriae jurisdiction: The High Court can grant injunctions protecting clinicians’ identities where necessary to protect the interests of the child, including the child’s welfare and right to confidentiality. However, this jurisdiction ceases upon the child’s death.
- The Broadmoor jurisdiction: Following Broadmoor Special Hospital Authority v Robinson [2000] QB 775, a public body can seek an injunction to prevent interference with its performance of statutory functions. This can extend beyond the child’s death but requires evidence of a real risk of interference with the trust’s functions.
- The clinicians’ own cause of action in tort: Clinicians can assert their own rights, notably under the developing tort of invasion of privacy, by being joined to the proceedings.
Standing After the Child’s Death
The Court held that once the child has died and a cooling-off period has elapsed, if the continuation of the injunction is sought to protect the clinicians’ own rights, the clinicians themselves must assert those rights. The Trusts do not have standing to assert the clinicians’ Convention rights on their behalf at that stage. Section 6(1) of the Human Rights Act does not require the court to protect Convention rights of individuals who are not parties but could be:
No such incompatibility can arise where the clinicians have a cause of action readily available to them at that stage, enabling them to seek the continuation of the injunctions (or the grant of fresh injunctions) in order to protect their Convention rights, but have failed to make use of it. Section 6(1) does not require the court to protect the Convention rights of individuals who are not parties to the proceedings before the court but could be parties if they chose.
Section 6(1) of the Human Rights Act
The Court rejected the Trusts’ contention that section 6(1) of the Human Rights Act obliged the court to grant injunctions protecting clinicians’ Article 8 rights in proceedings brought by the Trusts. Lord Reed and Lord Briggs stated:
In the present proceedings, on the other hand, public authorities – which have no standing as victims in relation to the potential violation of the Convention rights relied upon – seek to use the Human Rights Act to obtain relief against private individuals, on the basis that the court’s failure to grant that relief would violate the Convention rights of third parties who are strangers to the proceedings. That is not what the Human Rights Act was intended to achieve.
Open Justice
The Court held that the injunctions did not impinge on the open justice principle, given that proceedings of this nature are held in private under the parens patriae jurisdiction, as recognised in Scott v Scott [1913] AC 417 and in the Family Procedure Rules 2010.
Errors in the President’s Reasoning
The Supreme Court identified several errors in the President’s approach, including his acceptance that Article 10(2) requirements did not apply in “horizontal” disputes between individuals, and his rejection of the requirement for “compelling” or “convincing” reasons to justify restrictions on freedom of expression. The Court stated:
It is firmly established in the case law of the European court that “the need for any restrictions [of freedom of expression] must be established convincingly”.
The Passage of Time and Factual Assessment
The Court emphasised the significance of time. By the hearings below, years had elapsed since the children’s deaths. Extensive media coverage of both cases had occurred without evidence of adverse consequences for the clinicians or hospitals. The Court observed:
Although the parents will continue to grieve, the emotional reaction of the general public is unlikely to be as strong, especially if publicity was restricted while the child was being treated… By contrast, the effect of the restraint upon the parents’ freedom of expression is likely to be much more enduring in its consequences. The sense of injustice engendered by being prohibited from speaking freely about the loss of their child may well be lifelong in its effect.
The Interveners’ Systemic Concerns
While the Court accepted that protecting hospital staff against unfounded accusations is a legitimate aim, it held that granting permanent anonymity to all clinical staff as a class, regardless of individual circumstances, would be incompatible with Article 10 of the Convention. Hospital staff are “public figures” for Convention purposes, and the limits of acceptable criticism are wider than for private individuals.
Lord Sales’ Concurrence
Lord Sales wrote a concurring judgment emphasising that clinicians do have rights deserving of protection. He considered that during the “initial phase” when clinicians are focused on treating the child, hospital trusts should be able to act on the clinicians’ behalf to assert their rights. However, he agreed that outside that initial phase and a suitable cooling-off period, the standard procedural requirement that clinicians act on their own behalf applies.
Practical Significance
This judgment provides comprehensive guidance for future cases involving disputes over the withdrawal of life-sustaining treatment from children. Key practical points include:
- Injunctions in such cases should be of limited duration, expiring at the end of proceedings and any cooling-off period, rather than being of indefinite duration.
- The individuals whose identities are protected must be identifiable by reference to the court’s order.
- After the cooling-off period, clinicians must assert their own rights if they wish continued anonymity; trusts cannot do so on their behalf.
- The court must begin with domestic law rather than relying solely on Convention rights.
- Restrictions on freedom of expression must be established convincingly and justified by pressing social need.
- Hospital staff are public figures for Convention purposes, meaning wider limits of acceptable criticism apply.
- A permanent restriction on freedom of expression would require compelling circumstances.
The decision is significant in clarifying the relationship between section 6(1) of the Human Rights Act and the court’s inherent equitable jurisdiction, establishing that public authorities cannot use the Human Rights Act to obtain relief against private individuals on the basis of the Convention rights of third parties who are strangers to the proceedings.
Verdict: The Supreme Court unanimously dismissed the appeal by the NHS Trusts. The Court of Appeal’s orders discharging the injunctions were upheld, albeit for substantially different reasons. The injunctions protecting the anonymity of the clinicians in both the Abbasi and Haastrup cases were discharged.
Source: Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust (Rev1) [2025] UKSC 15
