Campbell v Mirror Group Newspapers (MGN) [2004]

English Tort Law

Campbell v Mirror Group Newspapers (MGN) [2004]
‘Recycle’ by Steve Mills

Convention principles and the juxtaposition between public interest and individual  privacy lie central to a clamant’s case when the needs of a known supermodel are considered secondary to the public knowledge of her drug addiction, thus sparking fierce debate as to where the lines of journalistic privilege and private health ought to be drawn.

Following the appellant’s prolonged public denial, she was rushed to hospital for emergency treatment in what was described as an allergic reaction to antibiotics, however a few months later the appellant was photographed outside a known ‘Narcotics Anonymous’ venue before a newspaper article included a number of those images under the title ‘Naomi: I am a drug addict’, in which the publication revealed that despite  repeated protests the appellant was in fact a long-term narcotics user, and that in a battle to overcome her addiction she had enrolled into a self-help programme. 

Unfortunately one of the images had captured the sign of a well-known café, thereby allowing readers to know where she may be found, while the article text revealed how often she might be attending, while prior to its release the newspaper editor had contacted the appellant’s agent, whereupon they were told that the images proved a violation of the appellant’s right to privacy and confidentiality in relation the anonymous nature of her chosen therapy, and yet the respondents ran the story and litigation followed soon after. 

In the first hearing the appellant claimed for breach of confidence and sought damages under the Data Protection Act 1998, whereupon she was awarded a total of £3,500, after which the Court of Appeal reversed and discharged the award before the House of Lords examined art.8(2) of the Human Rights Act 1998, which reads that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms of others.”

And art.10(2), which reads that:

“The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalities as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protections of the reputation or rights of others, for preventing the disclosure of information received in confidence, of for maintaining the authority and impartiality of the judiciary.”

While noting how in Attorney-General v Guardian Newspapers Ltd (No 2) they had held that:

“[A] duty of confidence arises when confidential information comes to the knowledge of a person . . . in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the e­ffect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”

Before the House further noted how clause 3(i) of the Editors’ Code of Practice of the Press Complaints Commission provides that:

“(iii) It is unacceptable to photograph individuals in private places without their consent. Note – Private places are public or private property where there is a reasonable expectation of privacy.”

However the House also referred to Bladet Tromsø and Stensaas v Norway, in which the European Court of Human Rights had held that:

“Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart in a manner consistent with its obligations and responsibilities information and ideas on all matters of public interest.”

Which was a position concurrent with s.12(4) of the HRA 1998, which reads that:

“The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to (a) the extent to which (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the pubic interest for the material to be published; (b) any relevant privacy code.”

And so by embracing both elements to the argument the House upheld the appeal on grounds that clandestine nature of ‘Narcotics Anonymous’ protected the needs and identities of those attending, thus when the respondents gained unauthorised access to the appellant’s treatment, they did so in the knowledge that it represented no less than a violation of her art.8 rights, whereupon the House reminded the parties that:

“Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court.”

Re S (Care Order: Implementation of Care Plan) (2002)

English Family Law

S A Care Plan
‘Tell Me There’s A Heaven’ by Paul Lovering

Re S (Care Order: Implementation of Care Plan)

In this conjoined appeal case there were two matters in need of address, and both involved a local authority and the issuing of final care orders for families in need of reunion. The first was re S (Minors) (Care Order: Implementation of Care Plan) and the second re W (Minors) (Care Order: Adequacy of Care Plan) as shown below:

Re S (Minors) (Care Order: Implementation of Care Plan) 

As the mother of three children aged fourteen, eleven and ten, to two fathers, the oldest of them was raised by the father of his younger siblings, and over a course of almost a decade became subject to both emotional, physical and sexual abuse on an almost routine basis.

Having run away from his home the victim explained his suffering and was subsequently placed into foster care, whereupon the stepfather denied all allegations with the full support of the victim’s mother, yet when challenged he displayed threatening behaviour before the local authority and was later sentenced to community service.

In light of those events the two younger children were also placed into foster care, while the parents separated in order to obtain their return to the family home despite recommendations by professional experts that the father remained an unacceptable risk to the children.

Following a hearing in the local court the father was found guilty of sexually abusing the eldest child, while both parents were held to have been physically and emotionally abusive towards all three children, with particular regard to the eldest sibling, while the local authority responded by seeking care orders for the three children.

While it was agreed that the eldest was to remain in foster care, the younger children were designated a care plan involving their return to the mother, however there was a degree of anxiety surrounding the absolute power of local authority decisions in such circumstances, and so mention was made of the potential human rights violation should the mother and children not retain a tenable relationship, along with the proposal of interim care orders so as to provide assurances to the family.

At the hearing the judge granted final care orders for all three children, and yet over time the promises of the social workers and appointed guardians dissolved into disappointment after none of the proposed programmes materialised.

Having been presented to the Court of Appeal, it was held that the local authority had abjectly failed on its promise to provide care, but was acquitted under arguments of monetary cuts and a reduction in public resources, whereupon the mother contended that the court had erred in not considering her suggestions for interim care orders and the children’s guardian sought relief under ss.6 (Acts of public authorities) and 7 (Proceedings) of the Human Rights Act 1998 (HRA), however both arguments were dismissed.

Re W (Minors) (Care Order: Adequacy of Care Plan)

In this instance the welfare of two boys aged ten and twelve years of age rested upon the intervention of the mother’s grandparents, who themselves resided in the United States of America.

Having met overseas, the parents returned to live in the United Kingdom in order to marry before starting a family, however during the course of their childhood the boys had been subjected to numerous separations and reconciliations, and also spent considerable time living apart from one another while remaining in contact with both parents.

This chaotic existence had later given rise to questions concerning the ability of the parents to meet the needs of the children, in large part due to the deteriorating mental health of the mother, who had made insubstantial allegations against the father prior to the local authority applying for an emergency protection and interim care order.

Having established a care plan it was agreed by the County Court that the two boys would be placed into foster care before the arrival of the American grandparents, who planned to live with them in the United Kingdom despite reservations by the judge that their migration would materialise, and that the proposed therapy and marital management programmes would succeed, with particular emphasis on the mother’s diagnosed imbalances.

Upon challenge by the local authority in the Court of Appeal it was held that the care plan had been prematurely executed, and so the final care order was replaced with an interim order, while referring the case back to the awarding judge, an alteration which instigated reluctance by the grandparents to assume care of the boys unless under definite conditions. This prompted the reissue of a final care order with the full support of the parents, albeit in argument that they would apply to have the order discharged if their reunion was not provided in due course.

For clarity, under s.33 of the Children Act 1989 an acting local authority is granted parental responsibility (PR) for the duration of the assigned care order and can therefore determine the rights of the parents in relation to their children, while under s.100, the courts are expressly denied interference with those powers, however, s.6 of the HRA 1998 prevents a public authority from acting in a way that proves incompatible with a Convention right, while s.7 allows those victim of such actions, to bring proceedings against them.

S.8 (Judicial remedies) further enables the court to decide how best to provide legal remedy, or issue powers appropriate to its jurisdiction, which translates that where a local authority infringes art.8 of the HRA 1998 (Right to respect for private and family life) the deciding court can lawfully grant relief to those affected. 

More interestingly, under the Review of Children’s Cases Regulations 1991 a local authority is required to consider the possible discharge of a care order on a six-monthly basis (subject to the views and consideration of the child(ren) and parents) while s.3(1) of the Children Act 1989 provides that parents retain the same rights, duties, powers and parental responsibilities as before an order was made, therefore their civil rights are affected, but not wholly compromised.

Finally, s.38 of the Children Act 1989 provides the court with powers to issue interim care orders in order to provide safety and security for vulnerable children for a determined period.

With both cases put before the House of Lords it became evident that in the first case the Court of Appeal had introduced a ‘starring’ mechanism as a means of preventing failure to implement care plans, whereby each plan was marked with progressive indicators that when not reached in the agreed period triggered automatic rights to reactivate the consultation process in order to avoid missed or overlooked public body requirements.

In the second case no such mechanism had been used, which had prompted intervention by the Secretary of State for Health, who received claims that ss.31, 33(3),38 and 100 of the Children Act 1989 were incompatible with existing Convention rights, while the local authority had appealed against the alteration of the care order and the broadening of judicial powers to award interim orders.

Examination of the Children Act 1989 and suggested incompatibility with Convention rights after the introduction of ‘starring’ drew immediate reference to the overlapping rights of courts when care orders are in effect, and while the House appreciated that the inventive use of rudimentary measures was a decision privy to Parliament, and that while there was stark evidence to support legislative reform, it was simply ultra vires for the Appeal Court to act without restraint. 

An so with regard to the overextension of the interim care orders when faced with an ill-prepared care plan, the House upheld the appeals bought by both a ministerial and public body, while taking time to remind the parties that:

“Where a care order is made the responsibility for the child’s care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority’s discharge of its responsibilities. That was the intention of Parliament.”

 

R (C) v Berkshire Primary Care Trust (2011)

English Medical Law

R(C) v Berkshire Primary Care Trust
‘The Danish Girl’ by Gerda Wegener

Psychological dependence upon a surgical procedure to establish a definite sense of identity, lies within the heart of this matter when a transgender patient experiences disappointment with the outcome of hormone treatment and seeks remedy from the National Health Service (NHS).

Having experienced a life of emotional turmoil and unrelenting conflict with the gender nature afforded him, a man takes the steps required to adjust his gender to that of a woman, inasmuch as reassignment procedures will allow. While not yet at the point of invasive surgery, the appellant elected to follow course of therapy that by its own methodology, would increase his existing breast tissue to that of an average woman; thereby removing any fears that members of society would, on a superficial level, ever confuse him with a man.

At the conclusion of the programme, the appellant was left with only a minimal increase in tissue growth, and the inadequacy felt lingered to the point of mild depression and disillusionment with both himself and the future. Following consultation with his consultant psychiatrist, his case was put forward to the relevant Primary Care Trust, in the hope that both the poor outcome of the biological intervention and the circumstantial criteria of the Gender Dysphoria and Cosmetic Breast Surgery Policies would allow funding for breast augmentation (augmentation mammoplasty) to redress the balance.

Having had prior experience of transgender applications for the mammoplasty, and in the knowledge that current policy considers the procedure to be low priority, the Primary Care Trust conducted independent research to establish if there was sufficient data to support the claim that breast augmentation was important enough to have a positive impact upon a patient’s life and mental health, in claims where such surgical adjustments are compellingly argued.

Despite previous case discussions around the subject, the results of the investigative report concluded that there remained insufficient justification to amend the policy, and so unless in the case of extreme symptoms, the funding could not be provided, and that the patients would need to seek their own source of revenue. When first refused, and in consideration of two complaints to the Health Commission, the second application failed again, before a request for judicial review was presented. On this occasion, the application for review was dismissed, before the appellant moved to argue for funding on grounds of human rights violations and discrimination.

Citing art.8 of the Human Rights Act 1998 (right to respect for private and family life) and art.14 (prohibition of discrimination), it was contested that denial of surgery was a breach of that right, and constituted excessive demands for an emotionally distressed transgender to suffer beyond that of an equally unhappy natural woman when determining eligibility for funding; and that such distinction resulted in nothing less than discrimination between the two types of patient.

Having evaluated the history behind the matter, and the recent investigatory methods used by the NHS, it was concluded that great attention had been placed upon the equality of a patients emotional well-being, and that unilateral guidelines were exacting enough to determine when funding was appropriate. This decision was supported in the decisory notes, which read that any patient seeking to obtain funding for policy procedures must demonstrate (i) that the patient’s case constitutes exceptional circumstances, (ii) that there is evidence of significant health benefit from the requested treatment, and (iii) there is evidence of the intervention improving health status.

On this occasion, the court quickly agreed that despite evidence of ‘chronic mild to moderate distress’ conveyed by the patient’s doctor, there was simply nothing to suggest that his situation was any more exceptional than a patient denied the resources, or that his symptoms were similar to those qualifying, transgender or otherwise, thus the court upheld the claim dismissal while also holding that:

“[G]ender and clinical needs are both relevant characteristics. Their aetiology is relevant diagnostically, but what are more critically relevant are the ethical and clinical judgments of the PCT, provided these do not transgress the law.”