No herd immunity for medical professionals at the conclusion of best interest proceedings: Supreme Court examines how clinicians may vaccinate themselves against identification

30 April 2025

Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15

On 16th April 2025, The Supreme Court upheld the Court of Appeal’s decision ([2023] EWCA Civ 331) to discharge injunctions anonymising clinicians and other hospital staff involved in the care of two children who had been the subject of High Court proceedings concerning withdrawal of life-sustaining treatment.

The decision in Abbasi explored the boundaries of interim injunctions by “reviewing from first principles”[7] the practice of making them and their continuation after the conclusion of proceedings. In so doing, the Supreme Court examined the fine balance between ever conflicting rights enshrined by Articles 8 and 10 of the European Convention on Human Rights.

Zainab Abbasi suffered from a rare and profoundly disabling neurogenerative disease and was treated in hospital under a mainly palliative treatment plan by the Newcastle Trust. Zainab’s parents were medically qualified and disagreed with the Trusts’ approach, culminating in proceedings brought by the Trust in the High Court seeking a declaration in Zainab’s best interests that life sustaining treatment be withdrawn. It sought an injunction to prevent identification of persons and institutions involved in Zainab’s treatment until the proceedings had been concluded. The application was supported by evidence of realised risks in comparative cases, which it argued were likely to arise in the instant case and would adversely affect the care the Trust could provide to Zainab and other children in its care. A temporary injunction was granted pending the outcome of a full hearing and the Trust successfully applied for a continuation of the same in reliance on Article 8 ECHR rights, this was unopposed.

Sadly, Zainab died on 16.09.2019 and a full hearing never took place. The injunction remained in force “until further order” save that the prohibition on naming the Trust lapsed upon Zainab’s death which marked the conclusion of proceedings. It was subsequently varied by consent to permit naming the parties to proceedings and the hospital in which Zainab was treated but remained operative to protect the identities of several treating clinicians listed in the original order.

Isaiah Haastrup was a victim of clinical negligence at birth which led to grave damage to his central nervous system and rendered him permanently dependent on a ventilator to sustain life in intensive care at the King’s Trust. As in Abbasi, King’s made an application to the High Court for a declaration in Isiah’s best interest to withdraw life sustaining treatment and sought an injunction to protect the identities of several clinicians. The injunction was granted pending a final hearing during which the terms could be reviewed. The terms as drafted stated the anonymity order would remain effective during Isiah’s lifetime and thereafter until further Order. In a judgment handed down on 29.01.2019, the court made the declaration sought by the Trust and identified the parties, including the hospital where Isaiah was being treated. However, it anonymised each of the clinicians who had given oral evidence, authored witness statements and provided second opinion reports. Isaiah’s life sustaining treatment was discontinued on 07.03.2018 and he sadly died later the same day.

The Court of Appeal considered whether the injunctions should remain in force indefinitely following the conclusion of both proceedings and determined they should be discharged. The Trusts appealed, giving rise to the instant decision of the Supreme Court. Firstly, the Supreme Court considered the inherent parens patriae jurisdiction of the High Court to make injunctions at the outset of proceedings contra mundum, anonymising the Trust and treating clinicians where necessary to protect a child’s interests:

“Like internet blocking orders, these injunctions can bind individuals, despite there being no cause of action against them, where that is the only effective way of protecting the interests which the order is designed to protect, whether those are the interests of the child, or the interests of the trusts in being able to perform their statutory functions without interference, or the interests of the clinical staff involved in the child’s treatment.” [49]

However, parens patriae powers cease upon a child’s death. Save where an injunction is granted on some other basis, the effect of this arguably leaves clinicians vulnerable to risk of interreference with their private lives at the height of public engagement and reporting of a case. The Supreme Court determined this issue could be overcome by inserting a “cooling off” period into the Order which allowed the Trust time to consider the merits of an application for continuation of the Order and the treating clinicians to take advice on making an application in a personal capacity supported by evidence of threats to their convention rights.

In principle, the High Court could also grant injunctions on the application of a Trust where necessary to prevent interreference with its performance of statutory functions, frequently termed Broadmoor injunctions (see Broadmoor Special Hospital Authority v R [2000] Q.B. 775). Furthermore, Clinicians and staff could apply in a personal or representative capacity for injunctions pursuant to the Protection from Harassment Act 1997, the Data Protection Act 2018, their Article 8 Convention right and the tort of misuse of private information: a tort which is not limited to disclosure of private information but extends to other forms of invasion of privacy (see PJS v News Group Newspapers Ltd [2016] UKSC 26).

The Supreme Court considered this may present practical difficulties in the circumstances of a dispute over life-sustaining treatment owing to the clinician’s primary focus on caring for the child. Notwithstanding, it determined that potential problem could be overcome if the Trust took a proactive approach to the same and supported clinicians’ individual applications for quia timet injunctions where harassment, breach of Article 8 rights and misuse of private information is anticipated, which could be joined to the proceedings brought by the Trust under the parens patriae and/or Broadmoor jurisdictions. It deemed the joinder of clinicians’ claims to the proceedings brought by the Trust would be “unlikely to put it to any significant additional trouble or expense”.

The High Court also has an inherent equitable jurisdiction to grant injunctions if failure to do so would be incompatible with Convention rights. The Trusts argued section 6(1) HRA 1998 required the Court to continue the injunction after the parens patriae jurisdiction ended. However, because the clinicians were not parties to the proceedings there could be no incompatibility with convention rights wherein the party seeking protection had failed to utilise a cause of action available to them to seek continuation of the injunctions, per the mechanism set out above.

In summary, the Supreme Court emphasised injunctions should be of limited duration and a permanent injunction will require compelling circumstances and evidence of risk specific to the case and individual clinician. The risks associated with publicity following the end of proceedings are generally expected to decline quickly comparative to the importance of the parents and media’s convention rights to freedom of expression.

The decision follows the direction of travel towards transparency in the Family Court, most recently exemplified in Tickle v BBC [2025] EWCA Civ 42. Sir Geoffrey Vos MR, delivering the leading Judgment for the Court of Appeal, determined there existed no inherent jurisdiction to anonymise the names of Judges who had made decisions in care proceedings and child arrangements orders wherein no party had suggested it was necessary, and no evidence had been filed in support. Such decisions had placed Sara Sharif in the care of her father and stepmother before she was tragically murdered by them in August 2023, triggering public repugnance and scrutiny of the prior Judicial decisions. Absent compelling and specific evidence that individuals’ Article 8 convention rights were in jeopardy, section 6 of the HRA 1998 and section 37 Senior Courts Act 1981could not justify withholding the Judges’ names. The Court found “Section 6 HRA did not require [the Judge] to trawl through his own experience” [63] to hypothesise the likelihood and severity of future risk absent some evidence of the same.