Open justice – Should there be anonymity orders within civil proceedings?

The Supreme Court (the highest court in the land) has recently considered when anonymity orders should be granted in civil proceedings, where an individual is detained under the Mental Health Act 1983 (MHA).

Judgment was handed down in the case of R (on the application of C) v Secretary of State for Justice at the end of January.

The starting position for civil proceedings is one of openness, enabling the public to know what is going on and who is involved in a case. In contrast, the starting position for a tribunal, for those subject to the MHA, is one of anonymity / holding hearings in private, to protect the individual.

So what happens when you have an individual subject to the MHA and issuing judicial review proceedings in the High Court? Should their identity be protected? This is what the Supreme Court had to consider.

Case summary

This case involved a patient who was subject to section 47 and 49 MHA and had sought to challenge the Secretary of State’s refusal to consent to unescorted leave in the community by way of judicial review. On commencement of the claim, the High Court judge provided that the patient’s name should be anonymised. However, once the claim had been rejected, the anonymity order was discontinued. The Court of Appeal upheld the decision.

The patient appealed to the Supreme Court raising the following questions:

  • is there a presumption of anonymity within civil proceedings for those subject to the MHA?
  • should an anonymity order be made in this case?

When considering anonymity orders, the Civil Procedure Rules set out that hearings should be held in public. However, there are exceptions to the rule. If the court believes it is necessary to protect the interests of that party their identity can be withheld.

Lady Hale made clear that “it would be wrong to have a presumption that an order should be made in every case. There is a balance to be struck.”

This balance is between the rights of the public versus the rights of the individual. To consider whether there should be an anonymity order, the court must consider the specific facts. In this case, the individual had committed a horrendous crime and the court recognised that “the existence of a risk to the appellant from members of the public is also acknowledged in the letters of the Secretary of State and reflected in the Parole Board’s requirement that he change his name.”

In this particular case, it was felt that an anonymity order was necessary in the interests of this patient. The court noted that “without it there is a real risk that the progress he has made… will be put in jeopardy…”

Comment
The case highlights that where patients are issuing claims within civil proceedings health providers will need to consider whether they would want the patient or the provider to be named in the case. Such requests for anonymity can only be made where it is in the interests of the patient. In reaching their decision, the court considered a letter from the patient’s responsible clinician, who carefully set out the risks that would arise if the patient was named. This included, the risk to the patient, the patient’s victims, the staff caring for the patient, in addition to the impact upon other patients within the hospital trust who may subsequently attract unwanted media attention.

If you have any questions or would like advice regarding judicial review proceedings please do not hesitate to contact us.

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