Where there is pressing media interest around a vulnerable old person, how do competing rights under articles 8 and 10 of the European Convention on Human Rights play out?
A decision of Sir James Munby, president of the Court of Protection, may help. The judgment in question (Re G (Adult)  EWCOP 1361) about G (an old and frail lady of 94, lacking capacity for material purposes under the Mental Capacity Act 2005) was handed down on 1 May 2014. Respondents were G by the Official Solicitor (OS) as her litigation friend and G’s two carers, C and F. Associated Newspapers Limited (ANL – publisher of the Daily Mail and other titles) was noted as an ‘interested party’.
In previous proceedings, Russell J had found that G lacked capacity for material purposes under the act and also noted that G was ‘subjected to pressure from C and F’. The authority concerned (the London Borough of Redbridge) subsequently sought an order from Cobb J that: ‘… until further order C be forbidden, whether by herself or instructing or encouraging others, from taking G or involving G in any public protests, demonstrations or meeting with the press relating to any aspect of these proceedings…’.
Cobb J made an interim injunctive order that ‘it is not in G’s best interests to communicate with the press at this stage, and until further order’. This was pending a substantive order to be considered in the light of a report on the issue, commissioned from Dr Andrew Barker, a consultant in old-age psychiatry.
In the light of OS concerns that a journalist might visit G socially, thereby avoiding the effect of Cobb J’s order, there was correspondence between OS and ANL. ANL then applied for an order (among other things) that: ANL be joined as an interested party to the proceedings; be served with a copy of Barker’s report; be permitted to make representations to Barker within seven days of being served with his report; and that Barker take these representations into account and revise his report as appropriate.
Relevant legal principles
The president sketched out ‘some basic principles’ which he considered ‘go to the heart of the issues’ to be determined. These included:
Article 8 – Right to respect for private and family life
1. The private life protected by article 8 includes the right of a person to define the ‘inner circle’ in which he or she chooses to live their life, including in particular the right to decide who is to be excluded from his or her ‘inner circle’.
2. Article 8 therefore embraces both X’s right to decide to establish and develop a relationship with Y (qualified, of course, by Y’s right to decide that s/he does not wish to establish a relationship with X) and X’s right to decide not to establish or continue a relationship with Z.
3. The state has a positive obligation under article 8 to ensure that X’s right to respect for private life is not violated as a result of press intrusion or harassment.
4. If for whatever reason, good or bad, reasonable or unreasonable, or if indeed for no reason at all, X [indicatively G in the instant case] does not wish to have anything to do with Y [indicatively a journalist in the instant case], then Y cannot impose himself or herself on X by praying in aid his or her own article 8 rights.
5. Consequently, subject to any issue as to X’s capacity or undue influence, X’s refusal to associate with Y cannot give rise to any justiciable issue as between Y and X.
6. If X lacks capacity, Y’s article 8 rights can no more trump X’s rights than if X had capacity. Y cannot impose himself on X by praying in aid his own article 8 rights. Y’s article 8 rights have to be weighed and assessed in the balance against X’s article 8 rights.
7. If Y’s rights and X’s rights conflict, then both domestic law and the Strasbourg jurisprudence require the conflict to be resolved by reference to X’s best interests. X’s best interests are determinative.
8. In the event of dispute, it is for the court – here the Court of Protection – to determine on behalf of X what X’s best interests require.
9. This is conducted inquisitorially since the function of the Court of Protection is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests.
10. In the circumstances, the identification by the Court of Protection of X’s best interests does not give rise to any justiciable issue as between Y and X.
11. Nor, said the president, ‘is there any justiciable issue as between Y and X in relation to the question of X’s capacity’.
Article 10 – Freedom of expression
The president noted that article 10 confers two distinct rights, namely the right to ‘receive’ and the right to ‘impart’ information and ideas.
1. ANL is not prevented from reporting information already in its possession or on court proceedings. This is at best a ‘receiving’ and not an ‘imparting’ case.
2. It is uncertain whether article 10 confers a right of ‘access to information’ as opposed to a right to disseminate information already available to the applicant.
3. However, this is immaterial in this case since ‘the right of access to information, if it exists at all, arises only in relation to information held by a public body, and the information in issue here is that held by G, C and F, that is, by private individuals’.
4. If a person (S) does not wish to talk to a journalist (J), J cannot demand that S talks to him and J’s reliance on article 10 will avail him nothing. It follows that S’s refusal to talk to or impart information to J cannot give rise to any justiciable issue as between J and S.
5. However, if a person (in this case G) lacks capacity then (per E (by her litigation friend the Official Solicitor) v Channel Four; News International Ltd and St Helens Borough Council  EWHC 1144 (Fam)) then (paraphrasing) there are three questions to be considered:
i. Does the person lack capacity? If yes, then;
ii. Is it in the person’s best interests for the material not to be disseminated? If yes, then;
iii. Do the person’s interests under article 8, and the public interest in the protection of the privacy of the vulnerable and incapable, outweigh the private and public interests in freedom of expression under article 10?
6. The first question for the court relates to capacity for the following two reasons: (i) since the jurisdiction of the Court of Protection applies only to those who lack capacity; and (fundamentally) (ii) since if the person has capacity, material decisions – including whether or not to impart information to J – are entirely matters for that person.
7. If, however, there is a conflict between S’s best interests as determined by the court and J’s rights as protected by article 10, the court moves on to the third and final stage of the inquiry.
In all the circumstances, the court found that the relief being sought by the local authority gives rise to no justiciable issue as between ANL and G, or between ANL and anyone else. Consequently, there was no reason for ANL to be joined.
Neither did ANL have ‘sufficient interest’ under rule 75(1) of the Court of Protection Rules 2007 and (under rule 73(2)) the court did not find it ‘desirable’ to join ANL as a party for the purposes of dealing with the application.
The court also found ‘no basis’ for the ‘insinuation by ANL that it should be joined as a party or allowed to intervene in relation to the issues of G’s capacity and best interests because otherwise relevant arguments may not be adequately put before the court’.
As the president indicated: ‘Either ANL has some basis for being joined as a party or it does not. If it does, all well and good. If it does not, then it is a mere interloper, an officious busybody seeking to intrude in matters that are of no proper concern to it, seemingly on the basis that it can argue someone else’s case better or more effectively than they can themselves’.
In the circumstances, ‘ANL’s application fails and must be dismissed’.
This case will be of interest and assistance to local authorities and others who deal with vulnerable people, particularly where there happens to be media interest. For in this context, Sir James Munby has detailed with admirable clarity the nature, scope and application of potentially competing rights under articles 8 and 10.
But if any residual doubt does remain, it is clear that there is no right to interlope.
Dr Nicholas Dobson is a consultant at Freeth Cartwright