While the needle firmly swings towards privacy in almost all cases before the Court of Protection, the Court of Appeal has recently upheld a decision to allow reporting of one case concerning the wealthy Hinduja family:
- “Hinduja family feud leaves patriarch Srichand Hinduja without right dementia care and needing public nursing home, judge says” (Sky News)
The case is also noteworthy for commentary from the Court of Appeal on the position the Official Solicitor took on the protected party’s Privacy, while representing them.
The Official Solicitor was in the difficult position of both arguing for publicity, which may ultimately benefit the standard of care provided to Srichand Parmanand Hinduja (SP), but also having to bear in mind the “intimate details of medical and personal care” of SP which might be disclosed. Both of these rights stem from Articles of the Human Rights Act 1998 (8 and 10), and must be balanced against each other.
The Official Solicitor’s position was said to change from one initially favouring privacy, to one of a “virtually complete removal of reporting restrictions”. This involved submissions that “a party has a presumptive human right under Article 6 to a fully reportable hearing in open court. This is the primary human right in play in a situation of this sort [..]”
The Court of Appeal queried this stance, asking counsel: “[..] why, when changing her stance, the Official Solicitor had not advanced a solution that protected SP's intimate personal care and treatment information from public view”. They went on to find that the stark final position taken by the Official Solicitor in this case was ‘unusual’. While upholding the broader decision to allow reporting, they also ruled:
50: […]There is no conceivable public interest in those [intimate medical] matters being made public, [..]. Publication of this material would in our view amount to a disproportionate breach of SP's rights under Art. 8 and it has not been asserted that there is any countervailing interest under Art. 10, or indeed under Art. 6.
They observed that it was flawed to assume that there would be ‘responsible reporting’ if disclosure of intimate medical information was permitted, despite the reliable assurances provided by those media present in court. Therefore they inserted consequent restrictions into an order.
The Court stressed that “[this] case is very much a case on its own facts and the judge took an exceptional course that has few if any implications for other cases”, so reporting is unlikely to become common in the Court of Protection, however we might take from it that:
- There may be very rare occasions where publicity may be the interest of the protected party; but
- Privacy is not a binary concept, and does not require an ‘all or nothing’ approach.
The Judgment is available here.
Hinduja family feud leaves patriarch Srichand Hinduja without right dementia care and needing public nursing home, judge says