Balancing privacy rights with free speech in medical treatment cases: University Hospitals Birmingham NHS Foundation Trust v Thirumalesh [2023] EWCOP 43

In the last issue of the Journal, we discussed a decision of the Court of Appeal in Abbasi on the problem of balancing a person’s right to freedom of expression (protected by Article 10 of the European Convention on Human Rights) with the right to private life (contained in Article 8) in the context of medical treatment. This commentary reports on a recent Court of Protection case, where a transparency order was discharged allowing for publication of the names of the patient and her family, the names of expert witnesses who had participated in the proceedings, and the identity of the NHS trust responsible for overseeing the patient's care. As with the Abbasi decision, the current case was concerned with the privacy rights of medical clinicians treating patients as well as the privacy rights of the hospital. Further, the present court had to consider and apply established principles in balancing the respective rights resolving the dispute, giving special protection to medical privacy, but also paying attention the wishes of the patients’ parents who wished to sell the story to the press.

This commentary will take us through the facts and decision in the new case, before comparing it with the Abbasi decision. It will then review of the principles applied in these cases so as to give some guidance to lawyers and practitioners as to which rights will prevail in particular cases, and the scope and extent of any court orders made to protect privacy and confidentiality of hospitals and their workers.