Friday 21 October 2016

Judge to rule on naming of woman who died after refusing kidney treatment

Brian Farmer

Published 03/12/2015 | 08:49

The woman said she had lost her
The woman said she had lost her "sparkle" and did not want to grow old (stock photo)

A judge is expected to decide whether the identity of a 50-year-old woman who has died after refusing life-saving kidney treatment should be revealed.

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The woman - who said she had lost her "sparkle" and did not want to grow old - hit the headlines when she was at the centre of litigation in the Court of Protection, where issues relating to sick and vulnerable people are analysed.

Hospital bosses had asked a judge to decide whether she had the mental capacity to make the decision to refuse treatment. Mr Justice MacDonald concluded that she did after analysing evidence at a hearing in London.

He ruled that the woman's identity should not be made public while she was alive - although he said the London-based King's College Hospitals NHS Foundation Trust, which asked for the ruling, could be named.

Lawyers representing one of the woman's daughters say she also wanted to remain anonymous in death, to protect her relatives' human rights to private and family life.

Late on Wednesday another judge made an order saying the woman's identity should remain secret until the issue could be fully debated at a further Court of Protection hearing, likely to take place in the next week in London.

Mrs Justice Theis analysed competing arguments from lawyers representing the woman's daughter and the Daily Mail over the telephone before deciding to make a holding order.

A legal team representing the woman's daughter - barrister Vikram Sachdeva QC and solicitor Laura Hobey-Hamsher, who works for law firm Bindmans - said there were good reasons why the woman's name should not be publicised.

Mr Sachdeva said there were particular concerns about the effect it would have on her youngest daughter, who is 15.

Barrister Adam Wolanski, for the Daily Mail, said any bar on identifying the woman after death was a significant interference with the human right to freedom of expression. He said evidence of potential harm to family members was ''very thin''.

Mrs Justice Theis said the arguments needed to be fully aired before a decision was made, but she said the balance was in favour of keeping the woman's identity secret for the time being.

In June last year another judge ruled that a bar on naming a Jehovah's Witness who rejected blood transfusion or treatment with blood products could be lifted after she had died.

Mr Justice Peter Jackson had also analysed 63-year-old Linda McKenzie's case in the Court of Protection.

He told doctors working for Newcastle Upon Tyne Hospitals Foundation Trust that they could lawfully withhold the treatments Ms McKenzie had refused.

He ruled that Ms McKenzie could not be identified in media reports while she was alive.

Trust bosses then argued that the identity of Ms McKenzie should also be kept secret after her death, but the Press Association argued that anonymity was no longer necessary.

Press Association legal editor Mike Dodd said Ms McKenzie could no longer be harmed by publicity, and added that she had no relatives who might be distressed.

He argued that identification would be an acknowledgement of her moral and physical courage.

Mr Justice Jackson decided that in Ms McKenzie's case the balance lay in allowing her name to be revealed, but he said cases had to be considered on their individual merits.

''In my judgment there is no good reason to conclude that the person's death should lead automatically to all protection being lost," said the judge.

"On the contrary, there are very good reasons why the court should retain the power to restrict where necessary the information that can be published, particularly where the information may only have come to wider attention as a result of its own proceedings."

He added: "I conclude that where a court has restricted the publication of information during proceedings that were in existence during a person's lifetime, it has not only the right but the duty to consider, when requested to do so, whether that information should continue to be protected following the person's death, and to balance the factors that arise in the particular case.''

Press Association

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