Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust (Rev1) [2025] UKSC 15 (16 April 2025)

Parents of gravely ill children who died sought discharge of injunctions protecting clinicians' identities after end-of-life treatment disputes. The Supreme Court held that while courts can grant such injunctions under parens patriae powers during proceedings, continuation after death requires clinicians to assert their own rights rather than NHS trusts doing so on their behalf.

Facts

Two separate cases were heard together concerning gravely ill children. Zainab Abbasi suffered from a rare neurodegenerative disease and was treated by Newcastle upon Tyne Hospitals NHS Foundation Trust. Isaiah Haastrup suffered brain damage at birth due to clinical negligence at King’s College Hospital NHS Foundation Trust. In both cases, the NHS Trusts sought declarations that withdrawal of life-sustaining treatment was in the children’s best interests. At the outset of proceedings, injunctions were granted protecting the identities of clinicians involved in the children’s treatment to prevent potential harassment and abuse from social media campaigns.

Both children died during or shortly after the proceedings. Their parents subsequently applied to have the injunctions discharged so they could speak publicly about their experiences and criticise named clinicians. The Trusts opposed discharge and cross-applied for continuation of the injunctions.

Issues

Jurisdiction

Whether the High Court has jurisdiction to grant and continue injunctions protecting clinicians’ identities in end-of-life treatment cases.

Standing

Whether NHS Trusts have standing to seek injunctions protecting clinicians’ rights after children have died and proceedings concluded.

Convention Rights Balance

How to balance the Article 8 rights of clinicians against the Article 10 rights of parents to freedom of expression.

Judgment

The Supreme Court unanimously dismissed the appeal, upholding the Court of Appeal’s decision to discharge the injunctions, though on significantly different reasoning.

Sources of Jurisdiction

The Court identified three potential bases for granting such injunctions:

(1) The parens patriae jurisdiction – available while the child lives to protect the child’s interests, including preventing disruption to their care;

(2) The Broadmoor jurisdiction – allowing public bodies to seek injunctions preventing interference with their statutory functions;

(3) The clinicians’ own cause of action in tort, particularly for invasion of privacy.

Duration and Standing

The Court held that injunctions should be time-limited, typically until the end of proceedings plus a cooling-off period measured in weeks. After the child’s death and cooling-off period, the parens patriae jurisdiction ends. If continued protection is sought for clinicians’ rights, the clinicians themselves (or a representative) must assert their own rights rather than NHS Trusts doing so on their behalf. Section 6(1) of the Human Rights Act 1998 does not require courts to protect Convention rights of persons who could be parties but choose not to be.

Balance of Rights

The Court emphasised that restrictions on freedom of expression must be established convincingly. Treatment of patients in public hospitals is a matter of legitimate public interest. Medical staff are public figures with wider limits of acceptable criticism than private individuals. On the facts, years after the children’s deaths with no evidence of continuing harassment risk despite extensive publicity, the parents’ Article 10 rights decisively outweighed any remaining Article 8 concerns of clinicians.

Implications

This judgment provides comprehensive guidance on the granting of anonymity orders in end-of-life treatment cases. It establishes that:

– Such orders should be time-limited with automatic review provisions;

– Clinicians seeking ongoing protection after proceedings conclude must assert their own rights;

– NHS Trusts cannot indefinitely act as proxies for clinicians’ Convention rights;

– The passage of time and changed circumstances must be factored into any continuing restriction on freedom of expression;

– Generic evidence from other cases is insufficient to justify continuing restrictions after proceedings conclude.

The judgment significantly limits the ability of NHS Trusts to maintain permanent anonymity for clinicians involved in controversial end-of-life cases and emphasises the strong public interest in freedom of expression regarding healthcare matters.

Verdict: Appeal dismissed. The Court of Appeal's order discharging the injunctions was upheld, though on different reasoning. The Supreme Court held that the injunctions should not continue as there was no proper legal basis for their continuation: the parens patriae jurisdiction had ended with the children's deaths, no reliance was placed on the Broadmoor jurisdiction, and the clinicians had not asserted their own rights.

Source: Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust (Rev1) [2025] UKSC 15 (16 April 2025)