Judgment has been handed down from the Royal Courts of Justice Family Division on Wednesday 23 June 2021 in the case of Drs Rashid and Aliya Abbasi against Newcastle upon Tyne Hospitals NHS Foundation Trust. The case raises significant issues of public importance. Drs Rashid and Aliya Abbasi were represented by Mr David Lock QC and Ms Katie Williams-Howes, instructed by Imran Khan QC and Susannah Mengesha from Imran Khan and Partners Solicitors. Our clients’ application was heard alongside that of Mr Lanre Thomas supported by Ms Takesha Thomas against Kings College Hospital, with PA Media intervening in both applications. Both applications were heard by The President of the Family Division.
Drs Rashid and Aliya Abbasi sought to overturn a Reporting Restriction Order (RRO) prohibiting the naming of any medical clinicians concerned in the care and treatment of their late daughter Zainab Abbasi, who had been the subject of “end of life proceedings” prior to her death. The background to this case is that Zainab, who was born with a life-limiting condition, had been in the care of the Trust until she sadly died on 16 September 2019. As medical professionals themselves, with professional expertise in their daughter’s condition, the Abbasis had been concerned about their daughter’s treatment. Following a breakdown in trust between the parents and some treating clinicians, the Trust obtained a Reporting Restriction Order for the purpose of the proceedings prohibiting the public naming of Zainab, the Trust, or any individual clinicians concerned in Zainab’s care. After the death of Zainab and following legal challenges this RRO was eventually amended to restrict only the naming of individual clinicians.
A particularly concerning event leading up to Zainab’s death was well publicised in the media following a video which “went viral” of what appears to show her parents being physically dragged from their dying daughter’s bedside by hospital security staff and police. During this incident Dr Rashid Abbasi suffered a heart attack. This video was picked up by multiple mainstream news outlets and provoked considerable national concern and outrage about this incident.
The Drs Abbasi had serious misgivings about theirs and their daughter’s treatment by some of the Trust clinicians, as parents and fellow practitioners. They wished to speak about that treatment, including the naming of the relevant clinicians which would assist in the public debate about care standards and approaches in the paediatric department at the treating hospital. They were prevented from doing so whilst the Reporting Restriction Order remained in place, and so sought to have it set aside. They also wished to raise broader issues around the clinical treatment of those with incurable or life-limiting conditions, in particular the increased likelihood of them being prematurely moved into palliative care and withdrawn from treatment, as opposed to optimising the quality of their life.
In these proceedings the question for the Court was whether perpetual injunctions could or should be granted against parents of a child patient who were dissatisfied with the medical care provided to their child, and wished to name the doctors who treated that child when they discussed those matters in public. In the Drs Abbasi case, their child had died and they were left with the RRO. The Drs Abbasi contend that once a child has died, it cannot be proportionate that such a restrictive order should remain in place indefinitely when the reason for bringing the legal proceedings no longer exists. They say that such a decision may have a chilling effect on the exercise of free speech – in particular the right to legitimate public criticism of public servants.
The Drs Abbasi submitted that the RRO in Zainab’s case should be immediately discharged and that an application by the hospital for a replacement injunction should be dismissed. It was asserted that the previous existence of “best interest” proceedings relating to a now deceased child did not permit the Court to entertain a later application concerning the continuation of an RRO. At the point at which the purpose of the proceedings came to an end with the death of the child, so too did the jurisdiction (if it existed) to grant injunctions. Absent a freestanding claim under the tort of misuse of private information, the hospital staff would have no right to claim an injunction if there were no other extant proceedings. As such, it could not be right to use concluded proceedings, which were issued for a different purpose, to establish jurisdiction with respect to the grant of a continuing injunction. The Court dismissed this argument on the basis that the RRO still remained in force, expressly made on the basis that it would have effect during the life of the child and thereafter until further order. It would, therefore, continue in force after the child’s death. It was held that where it is accepted that the Court has made an order which is currently in force, the High Court Family Division must have jurisdiction to review the continuation of that order.
In the alternative it was submitted by the parents that if the Court were obliged to conduct a balance of rights then they had the right to free speech, which the Court was required to protect under Article 10 of the European Convention on Human Rights. The Abbasis contended that naming the doctors as part of a legitimate public discussion about how they, as parents, were treated, and how Zainab was treated, could not be a legal wrong. Hence, they should not be subject to an injunction because they would be committing no legal wrong in naming the doctors. They asserted that if criticism in the public space went so far as to become unlawful, there were already existing legal mechanisms in place to deal with such an event. In its judgment the High Court noted that if a balance had to be struck between competing rights of individuals under Articles 8 and 10 of the European Convention on Human Rights in a horizontal dispute between parties such as the parents and the Trust, the court process must be one that is prescribed by law and in accordance with the approach in the case of Re S  1 AC 593 – which considered whether a proposed limitation on free speech was necessary in a democratic society. The process in Re S set out that neither Article has as such precedence over the other. Where the values under the two Articles were in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case was necessary. The justifications for interfering with or restricting each right must be taken into account and the proportionality test must be applied to each. In the Abbasis’ case it was held that the balance should come down in favour of the Article 8 right to privacy of NHS staff over the Article 10 right of the parents to free speech. Whilst it is accepted that to retain the RROs is a continuing infringement of the parents’ rights, the Court held that continuation of the orders was necessary and proportionate. In making its decision, the Court took into account the cases of Charlie Gard and Alfie Evans, during which treating clinicians were subjected to what the Court described as “vile and unbounded threats and denigration across social media”.
From the outset there has been no question of the Abbasis themselves seeking to act outside of the law, or seeking to provoke others to do so. The Abbasis acknowledge that once criticism is made of a professional in a public space, that criticism may be picked up by others and used to attack the individual, particularly using social media, in an irresponsible way. However, the Abbasis suggest that this is a problem society has at large - it is not confined to paediatricians as a professional class. They point to existing social media sites that are dedicated to such conduct, including accusing judges of bias or incompetence and castigating social workers who are involved in taking children away from their parents. Wherever professionals are involved in issues which are seen to intrude on the private lives of individuals, social media gives a platform to people to make allegations against professionals (and others) whether they are right or wrong. However, at least to date, the law has never sought to restrain the exercise by a person of their right to make responsible and lawful public statements in exercise of their Article 10 rights on the basis that others may use those statements as a platform for acting unlawfully on social media – by defaming the person complained about, harassing them or otherwise acting unlawfully. Defamation, harassment and hate speech are all prohibited by law. Also prohibited are actions which amount to a breach of confidence, such as talking about things which are private in the public space. The Abbasis contend that whilst there is a right to criticise professionals, if that criticism goes too far and crosses the boundary of legality, remedies are available. Conversely, there is no right of professionals not to be made offended by legitimate criticism.
The Abbasis are of the view that the right to publicly criticise wrongdoing by individual clinicians is a safeguard that should be available, particularly in circumstances where there has been a deficit in accountability, and where professional regulators have failed. In their view the Abbasis consider that other formal remedies - such as internal complaints, serious incident investigations, Parliamentary and Health Service Ombudsman, Care Quality Commission and General Medical Council – are not adequately placed to address concern such as theirs. In such circumstances, they assert that the remedy of self-help by seeking public accountability should remain open to them.
The Abbasis assert that the central point of free speech is to allow important matters to be discussed, and to allow discourse. They cite examples of where, in the absence of adequate intervention from professional bodies or regulators, whistle-blowers and the (responsible) media have brought serious medical malpractice to light – such as the care homes scandals, the Bristol children’s hearts scandal, Stafford Hospital and the Shrewsbury Hospital scandal. The Abbasis contend that where a balance must be struck between freedom of speech and the right to publicly criticise, against the perfectly legitimate right of clinicians not to be targeted or unduly ostracised, that balance must come down on the side of free speech. They say this is particularly so in circumstances where those that might be the subject of public criticism operate in public roles; and even more so, in circumstances of a child death which has occurred in the context of concerns over sub-optimal care. In the Abbasis’ view, any other position casts a serious shadow over public accountability for medical malpractice. They say that the public must expect transparency so as to be able to make informed choices about where they access care; and should any incidents of malpractice be highlighted, they can be corrected and the medical profession may take forward the benefit of learning from its mistakes.
This case serves to highlight that human rights are not a series of unqualified absolutes, but rather a delicate and shifting balance of often competing interests and harms. It seems unlikely that this will be the end of this debate, as the judiciary seeks to reconcile the perpetual difficulty of balancing conflicting freedoms, in particular the constant tension between the right to privacy and the right to free speech. It is equally unlikely that in memory of their daughter who died in such tragic circumstance the Abbasis will allow the matter to rest here.
A copy of the full written judgment is available here.