What’s in a name? – Appeal court dismisses mental health patient’s application to protect identity

Lord Carloway
Lord Carloway

A vulnerable woman who was made the subject of a hospital-based care and treatment order has had an application to prevent disclosure of her identity dismissed by appeal judges.

The mental health patient, who had lodged an appeal against a decision of the Mental Health Tribunal for Scotland (MHTS) to impose the order, was seeking to anonymise her details to “protect her privacy”.

However, the Inner House of the Court of Session ruled that an order to prohibit publication of her identity would “conflict” with the principle of “open justice”.

‘Private hearing’

The Lord President, Lord Carloway, sitting with the Lord Justice Clerk, Lady Dorrian and Lord Malcolm, heard that the appellant, identified by her initials “MH” in the court’s judgment, was compulsorily detained in January 2018 for 28 days in terms of a short term detention certificate under section 44 of the Mental Health (Care and Treatment) (Scotland) Act 2003

An application to the respondents for a compulsory treatment order extended that period by five days, during which the respondents were bound to reach a decision. 

A hearing was arranged for March 2018 at premises in Irvine, when the respondents purported to make an interim hospital-based care and treatment order.

The unusual feature of the private hearing was that, although the medical and general members were present, the legal convenor was not in the building, having been unable to reach the premises because of unusually inclement weather. 

He was in communication with the hearing by telephone, but the appellant’s solicitor claimed that the hearing was not properly constituted in terms of rule 64 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005, which provide that the respondents cannot decide any question “unless all members are present”. 

However, the convenor determined that the hearing could competently proceed - a decision which was later upheld on appeal by the Sheriff Principal.

‘Vulnerable woman’

The appellant was seeking to challenge that decision in the Court of Session, but in the interim she enrolled a motion “to anonymise her details to the initials ‘MH’ and to design her care of [her solicitors] in order to protect her privacy”. 

The motion stated that the appellant was a “vulnerable individual” and that the matter concerned the conduct of the MHTS.

It was argued that people with a mental disability were entitled to “equal access to the courts” and it was “incumbent” upon a legal system to afford “appropriate protection” to those with mental illnesses in order to ensure their “effective participation” in the process, in accordance with Article 6 and 14 of the European Convention on Human Rights and Articles 3, 5, 12 and 13 of the United Nations Convention on the Rights of Persons with Disabilities.

Counsel for the appellant submitted that where a person with a mental illness was the subject of action taken by the state, his or her name ought not to be disclosed “unless there were pressing circumstances to the contrary”.

The proceedings before the MHTS required to be held in private unless a patient sought a public hearing, and it was submitted it was “inherent” in the very nature of a mental health case that the name of the patient was not something that it was in the public interest to know.

In Article 8 terms, the case contained a number of matters relating to her life and condition and that there was “no public interest” in disclosing her name.

The appellant, who was not seeking a reporting restriction under section 11 of the Contempt of Court Act, argued that the court had an “inherent common law jurisdiction to restrict the reporting of matters disclosed in open court”, the effect of which was “equivalent” to a section 11 order because publication would constitute a breach punishable for contempt of court.

‘What’s in a name? A lot’

However, the appeal judges observed that the rule of open justice was a “constitutional principle” departure from which required a “compelling justification”, and should extend only to the degree that the public interest of necessity dictated. 

In a written opinion with which both the Lord Justice Clerk and Lord Malcolm agreed, the Lord President ruled that the motion should be refused.

In his written opinion, the Lord President said: “Open justice has two key elements. The first is that proceedings are heard and determined in public. The second is that the public has access to judicial determinations, including any reasons for them and the identity of the parties.

“In the modern era, members of the public rarely attend the courts to see the justice system in action. They rely on the press to provide them with accurate information on judicial proceedings; thus allowing the process of scrutiny to continue.

“In this jurisdiction at least, the court reporter is an endangered species. The press now largely depend on the courts themselves to supply relevant information on proceedings through the issue, in civil cases, of opinions. 

“Freedom of expression, now enshrined in Article 10 of the European Convention, is effectively protected by the openness of the courts and their publication of information on their proceedings in terms of the common law duty and now also the public hearing element of Article 6.

“In so far as the development of the law is concerned, the identity of a party may be seen as irrelevant. However, the need to identify the parties was comprehensively explained by Lord Rodger in In re Guardian News and Media [2010] 2 AC 697 (at para 63) when he answered his own question ‘What’s in a name?’ by saying ‘A lot’. The press required to name names in order to attract readers and hence promote continued scrutiny of the civil justice system.

“There are situations in which the court can, and sometimes must, withhold information, and in addition make a reporting restriction, but these must be set against the background of the general principle. They should be rare events and depend not upon categories of case but individual circumstances.”

‘Open justice’

He continued: “In this particular case, the fact that the appellant was in some way involved with the mental health regime is an important consideration… Mental Health Tribunal procedures will normally be held in private.

“Care may be needed to protect a mental health patient from having his or her privacy unnecessarily disrespected. Where an appeal is on a point of law, it will seldom be necessary to divulge details of a patient’s illness in a court opinion or during the course of an appeal hearing. The press or public would not normally have access to those details. 

“It is quite another matter to anonymise, or to prohibit publication of, the name of an appellant simply because by doing so would reveal that he or she is in some way involved in mental health proceedings. That fact, as a matter of public record, should hardly be kept secret, even if during the appeal hearing it seemed to be suggested by both parties that it would not be divulged, even to close relatives who may be concerned about what had happened to the patient. 

“In most cases, the fact that a patient is subject to mental health proceedings will be known to those in the patient’s immediate circle of friends, family and quite possibly the wider community. It is not to be, and should not be, kept secret when doing so would conflict with the general need for open justice.”

The Lord President added: “It was asserted that the revealing of a patient’s identity in this limited manner might discourage them from appealing decisions taken by the respondents. There was no evidential basis for this proffered. It was also said that it would in some way have an adverse effect on the appellant’s health. There was no evidence of this. 

“If there were a real or substantial risk that identifying the appellant as someone involved in the mental health system would have a significant impact on the appellant’s mental health, that is something which the court would be bound to take into account. There is no medical opinion to that effect.

“However, if it were to be, then the court hearing the merits of that appeal may reconsider matters in so far as their own opinion is concerned. As matters stand, there is insufficient material to justify anonymising the appellant’s name in these proceedings.” 

© Scottish Legal News Ltd 2021

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