Commercial Speech, Privacy, Data Protection and Retention
ACA Connects v. Frey
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The U.K. Supreme Court reversed the lower court’s decision and granted an anonymity order to a British national who was compulsorily admitted in a psychiatric hospital and had had his request for unescorted community leave turned down by the U.K. Secretary of State. The patient had applied for judicial review before the High Court and the hospital’s clinician responsible for the patient had requested the court to issue an anonymity order. The court ordered the identity of the hospital and its staff to remain anonymous, but it refused to conceal the patient’s identity on the ground that his previous proceedings were publicly available. The U.K. Supreme Court held that whether an anonymity order related to legal proceedings of a mental patient is necessary must be assessed on a case-by-case basis. Yet “[t]he public’s right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure.” (R. v. Secretary of State,  UKSC 2, para. 36.) With respect to the patient in the present case, the Supreme Court reversed the lower court’s decision, finding it necessary to preserve his identity as well. The Court was of the opinion that the disclosure of his identity could jeopardize his treatment and re-integration into the community.
The claimant in the present appeal before the U.K. Supreme Court had a long history of severe mental illness and was under compulsory admission in a psychiatric hospital pursuant to the Mental Health Act of 1983 (1983 Act). Following his release from the hospital, he was convicted of murdering a female patient and her partner and was sentenced to life imprisonment with a minimum term of 11 years before a parole could be considered.
In 2000, the claimant was transferred to a high security psychiatric hospital pursuant to a direction of the Secretary of State under Section 47 of the Act, and again in 2007, he was moved to a medium security hospital. In 2012, his clinician requested the Secretary of State’s consent for an unescorted leave in the community. The Secretary of State refused to issue such permission on multiple occasions. Subsequently, in 2013, the responsible clinician appeal the denials to High Court of U.K.
In response to the court’s request for submission, the clinician asked the court to conceal the identity of the hospital, its staff, and particularly the patient, reasoning that the such high profile case would attract substantial media attention, which could adversely impact the care and treatments provided by hospital. According to the clinician the hospital staff “would need to be vigilant to monitor the safety of the individual in terms of the media interests and the impact this may have on [the patient] and on other patients who are detained in hospital with him and their attitude to him.” ((Id. at para. 9.))
Th High Court agreed to conceal the identity of the hospital and its staff during the proceedings, but it refused to issue a similar anonymous order with respect to the patient. The Court found no reasonable justification to conceal his identity on the grounds that his previous proceedings were publicly available and that in general, the public has a right to know about the court’s decision.
Following the Court of Appeal’s dismissal order, the original anonymity order remained in force pending a judicial review by the U.K. Supreme Court.
Justice Lady Hale delivered the opinion of the Supreme Court.
The first issue before Court was whether “there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act [of] 1983.” ((Id. at para. 1.)) The second issue was whether the patient in the instant case was entitled to conceal his identity during the legal proceedings.
Pursuant to Article 39.2(1) of the Civil Procedures Rules, “[t]he general rule is that a hearing is to be in public.” ((Id. at para. 14.)) But “[a] hearing, or any part of it, may be in private if . . . a private hearing is necessary to protect the interests of any child or protected party.” ((Id.)) According to the Court, “[a] ‘protected party’ is a party, or intended party, who lacks capacity, within the meaning of the Mental Capacity Act 2005, to conduct the proceedings.” ((Id.)) Furthermore, Article 39.2(4) of the Rules state that: “(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.” ((Id. at para. 15.))
The Supreme Court also made reference to Article 6(1) of the European Convention on Human Rights on the right to fair trial and the exceptions to publicity of court proceedings:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
In the Court’s opinion, “restrictions on publicity involve striking a balance between the right to respect for the private life of the individuals concerned, protected by article 8 of the European Convention on Human Rights, and the right to freedom of expression, protected by article 10 of the Convention.” ((See also In re S (A Child) (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593; In re British Broadcasting Corp  UKHL 34;  1 AC 145.)) But in order to weigh the conflicting rights at issue, the Court considered it necessary to first distinguish between the right against publicity in ordinary civil proceedings involving a mental patient and where the patient is under compulsory psychiatric treatment. In this respect, the Supreme Court found that there is a presumption of anonymity in both first tier tribunal and appellate review of decisions concerning metal health cases under the 1983 Act. For example, Rule 37(1) of the Tribunal Procedure provides that “[u]nless the Upper Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public.” ((Supra note 1, at para. 24.)) Such presumption, according to the Supreme Court, is also evident from the U.K. Court of Protection that also handles cases of mental disorders and disabilities.
After discussing prior cases on the right to privacy with respect to trial proceedings, the Supreme Court considered to important, relevant factors in balancing the public’s right to know and one’s right to preservation of his privacy. According to Court, a decision to allow a leave of absence or to transfer a patient to a less secured mental facility involves “a mixture of clinical and risk factors.” ((Id. at para. 33.)) And as the main objective is to improve the mental health of the patient and at the same time, ensuring the safety of others, the decision to release or transfer the patient often demands reviewing confidential medical information. The Court particularly stated that the “[j]udicial review of the Secretary of State’s decisions is no different.” ((Id.))
The Court also was of the opinion that disclosing proceedings concerning a mental patient can have a “chilling effect” upon the patient’s willingness to be open with his doctors, therapists, and nurses as the relationship between them is mainly built on trust and confidentiality; “[i]f a patient fears that his confidence may have to be breached in the course of legal proceedings about his future care and treatment, he may be less inclined to be as open and frank as he should be in his dealings with them.” ((Id. at para. 34.)) Also, the fear of being identified publicly may prevent the patient from challenging his continued deprivation of liberty.
Accordingly, the Supreme Court concluded that the decision as to whether anonymity is necessary for a metal patient must be assessed on a case-by-case basis and “the public’s right to know has to be balanced against the potential harm, not only to this patient, but to all the others whose treatment could be affected by the risk of exposure.”
With respect to the claimant in the present case, after examining all the above-mentioned factors, the Court ruled that an order of anonymity was necessary. The existence of a risk to the appellant from the public was further acknowledged in letters of the Secretary of State and in the Parole Board’s requirement that his name had to be changed. Also, the Court was of the opinion that without preserving his privacy during the course of legal proceedings, the progress made in his long mental treatment would be at risk and that the prospect of reintegrating him into the community would be unlikely.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression because it advocates for the open justice principle and calls for the appropriate balancing of the right to privacy and freedom of expression on the point of the anonymity of parties to a case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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