Carl Gardner, Deceased (Duration of Transparency Order), Re [2025] EWCOP 34 (T3)

[2025] EWCOP 34 (T3)Date 24 September 2025
IN THE COURT OF PROTECTION
Before
MR JUSTICE POOLERe CARL GARDNER, DECEASED (DURATION OF TRANSPARENCY ORDER)NHS STAFFORDSHIRE AND STOKE-ON-TRENT INTEGRATED CARE BOARDApplicant(1) CARL GARDNER (previously anonymised by the Court as AB), now deceased)(2) MIDLANDS PARTNERSHIP UNIVERSITY NHS FOUNDATION TRUST(3) DANIELLE HUNTINGTON (previously anonymised by the Court as CD)(4) RUTH COWLES (previously anonymised by the Court as EF)RespondentsPROFESSOR CELIA KITZINGERIntervenor
Hearing Hearing date: 16 September 2025
The Applicant not appearing
The First Respondent now deceased and the Official Solicitor no longer acting
The Second Respondent not appearing
Victoria Butler-Cole KC and Alexis Hearnden (instructed by Advocate) for the Third Respondent
Parishil Patel KC and Eliza Sharron (instructed by Irwin Mitchell LLP) for the Fourth Respondent
Emma Sutton KC and Gemma McNeil-Walsh (instructed by Advocate) for the Intervenor
JUDGMENT
This judgment was handed down remotely at 10.30am on 24 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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Introduction

[1]This is the third judgment I have published in these proceedings. The substantive proceedings have now concluded. They concerned an Advance Decision to Refuse Treatment (“ADRT”) made by Carl Gardner, previously anonymised by the Court as AB. The earlier judgments were Re AB (ADRT: Validity and Applicability) [2025] EWCOP 20 (T3) and Re AB (Disclosure of Position Statements) [2025] EWCOP 25 (T3). Following a final hearing of the substantive proceedings on 30 June 2025 I made an order on 4 July 2025 directing Mr Gardner’s transfer to a hospice for palliative care in accordance with the choices he had made in his ADRT. He died on 8 July 2025. I have offered my condolences to his family, including to the Third Respondent, Danielle Huntington, his partner and fiancée, and to the Fourth Respondent, his mother who effectively, if not formally, speaks for the whole of Mr Gardner’s large family.[2]The order of 4 July 2025, which all Counsel involved at that final hearing had agreed, included a direction that the “Transparency order dated 23 May 2025 shall cease to have effect from 30 August 2025”. Mr Gardner was likely to die within a short time of his transfer to a hospice and so the Transparency Order (“TO”) was to be discharged after a suitable “cooling off period” following his death.[3]This third judgment concerns the Fourth Respondent’s application to extend the TO beyond 30 August 2025. The application was made on 5 August 2025 but could not be heard until after 30 August 2025 and so I made a direction on paper for the TO to continue in effect pending the hearing of the application which took place on 16 September 2025.[4]The Fourth Respondent, represented then, as now, by Leading and Junior Counsel and solicitors, agreed to the discharge date of 30 August 2025 but she and the whole family have now had a change of heart. The TO allows for applications to be made to vary it and she is entitled so to apply. This is a stressful and distressing time for her and all those close to Mr Gardner and I acknowledge how raw feelings are given the prolonged litigation, the hostility that has arisen between Ms Huntington and members of the family about the ADRT and associated matters, Mr Gardner’s severe brain injury, and his death. For the purposes of my determination on the application, I do not give weight to the fact that the Fourth Respondent, on behalf of the family initially agreed to the TO being discharged on 30 August 2025.[5]The background is set out in the previous judgments and I need not repeat it. At the hearing on 16 September 2025, and further to a written request by Ms Sutton KC, I directed that Professor Kitzinger, Co-Founder of the Open Justice Project, who is a long-time observer and commentator on the Court of Protection and who has a particular interest in Advance Decisions, be joined as an Intervenor for the purposes of this application only. The Applicant ICB made written submissions but requested to be excused from attendance at the hearing, which request I granted. The ICB adopted a broadly neutral position on the application. I also excused the attendance of the NHS Trust which had been caring for Mr Gardner for many months after his brain injury in 2024, a party in the earlier proceedings. I received written and oral submissions from all parties and the intervenor attending the hearing and statements from Ms Huntington, from the Fourth Respondent, Mr Gardner’s mother, and from one of Mr Gardner’s sisters. In addition to Professor Kitzinger who attended in person, two observers attended remotely and an accredited journalist attended in person.

The Transparency Order

[6]The TO is in standard form except that I added to the protected information some details about Mr Gardner’s personal life and care which were so particular to him that publication of such information would have been likely to lead to his identification. One of those details was his occupation as a dog handler. Another was the name of the treating clinician because they had so few patients similar to Mr Gardner that identifying the clinician would identify him.[7]The TO is an injunction. It is not a contra mundum (against the world) injunction but it applies widely, not only to the parties and their representatives, but also to witnesses, all persons who attend a hearing, all persons who by any means obtain or are given an account or record of a hearing or who obtain documents and information arising from the application, and any body or organisation and their employees and agents for whom any such person works or is giving evidence. A penal notice is attached to the TO warning that any person who breaches the injunctive parts of the order may be found guilty of contempt of court and may be sent to prison. The injunction prohibits such persons whether orally or in writing, directly or indirectly, from publishing or communicating the identified information or any part of it, or causing, enabling, assisting in or encouraging its publication or communication.[8]The TO identifies the information covered by the injunction as including:
“(i) any material or information that identifies or is likely to identify that: (a) AB is the subject of these proceedings (and therefore a P as defined in the Court of Protection Rules 2017), or that (b) CD is AB’s partner/fiancée, or that (c) any person is a member of the family of the subject of these proceedings (namely AB), or that (d) EF is a party to these proceedings, or that [(e) to (j) concern specific identifying information about AB including that his profession was as a dog handler] (ii) any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details.”
Court of Protection Rules 2017), or that (c) any person is a member of the family of the subject of these proceedings (namely AB), or that (d) EF is a party to these proceedings, or that [(e) to (j) concern specific identifying information about AB including that his profession was as a dog handler]

Submissions

[9]The Fourth Defendant’s position at the hearing was that:
“(i) The TO should remain in force for 10 years; (ii) In the alternative, the TO should remain in force for a minimum of 2 years, but on the basis that the names of AB’s family members (as set out in the Schedule attached) remain subject to restrictions on publication either indefinitely or for up to 10 years; (iii) Clarity on how information from court documents may be used is sought, so that everybody is clear on how the flow of information will be governed; (iv) There is no objection to CD being granted permission to disclose/communication information from the proceedings to complaints’ bodies, or for her to communicate information to named people/identifiable classes of people, for emotional support.”
[10]In the evidence in support of the application and in submissions on behalf of the Fourth Respondent it was put to the Court that:(i) Mr Gardner was a private person and said as much in the Living Will (which included the ADRT) and other documentation he wrote before his brain injury.(ii) Speaking for the family, Mr Gardner’s sister has claimed that discharge of the TO would “threaten our relationships, careers, community and values.” She says that “we could be approached in public, gossiped about and become isolated in our communities. We would be genuinely concerned about our physical safety…” I was told of the jobs performed by three of the family members in which they have trusted roles which involve work with potentially vulnerable individuals. Mr Gardner’s sister says, “our careers and jobs are at risk if we are identified … if the knowledge was widely known in my community my employer would have no choice but to end my employment. False allegations … would likely result in suspension pending investigation. In my profession, a suspension on my record, even if unfounded, would cause reputational damage.”(iii) Evidence submitted very late from the Fourth Respondent included a GP letter referring to her health and confirmation that the bereavement has caused things to take “a turn for the worse.”[11]All parties agree that these proceedings have raised issues of substantial public interest. There have not been many court decisions on ADRTs and their applicability and validity. The way in which the Court of Protection deals with ADRTs is an important matter. The issue of the authenticity of the ADRT and the potential for allegations of fraud to be made in such cases is a further matter of public interest, as is the question of open justice itself, including the provision of position statements to observers at hearings which was addressed in the second published judgment. For the family, Mr Patel KC and Ms Sharron submit that these issues can be fully aired and debated without naming Mr Gardner or members of the family. Continuation of the TO will not therefore materially affect the Article 10 rights of others, whereas the family’s Article 8 rights will be significantly interfered with should the TO be discharged.[12]Ms Hearnden for the Third Respondent who prepared written submissions with Ms Butler-Cole KC but who made oral submissions alone, submits that:(i) The events of the past 18 months have had a profound impact on Ms Huntington. She has been accused of being party to producing fraudulent documentation including her partner’s Living Will. She has had to battle with the NHS as well as the family to ensure that Mr Gardner’s choices were respected. She wants to talk freely to her family, friends and professionals, and may in due course wish to speak more publicly, about her late fiancé, the Living Will including the ADRT, the circumstances leading to the litigation and the litigation itself. These issues are unavoidably personal but are also of much wider public interest.(ii) The Third Respondent feels let down by the Royal Stoke Hospital and Haywood Hospital and wishes to take up her grievances with them so that they can improve their practices and procedures in relation to ADRTs.(iii) The TO acts to supress her freedom of speech. She has been very mindful of the terms of the TO and the threat of contempt proceedings in the event of any alleged breach of the Order. The terms of the TO are such that she worries about breaching it by communicating information which she might not realise would be likely to identify Mr Gardner or a member of his family. She says in her witness statement: “I understand that at present a Transparency Order remains in place which prevents anyone from speaking about the fact that Carl was been the subject of Court of Protection proceedings or by disclosing information that would make it likely that Carl could be identified as the subject of proceedings. I have found it difficult to understand what is caught by the Transparency Order and what can be spoken about as simply part and parcel of my life. For example, some of Carl’s friends have spoken in my presence about what Carl told them about his relationship with his family; I have erred on the side of caution given the Transparency Order and have said nothing. I find it very stressful to think that I could be fined or sent to prison if I get it wrong.”(iv) Ms Huntington accepts that Mr Gardner was a private person but states that he would also have wished to have asserted his own choices and his advance decisions – that is why he made them. That did not happen for a prolonged period in this case. He would have wanted the truth to be told about his wishes and the steps he took to make an advance decision to refuse medical treatment. She wants to be able to do that for him.[13]For Professor Kitzinger, Ms Sutton KC and Ms McNeil-Walsh adopt the submissions made on behalf of the Third Respondent. They say, further, that the TO prevents Professor Kitzinger, and other commentators from fully airing the issues in the case. For the reasons articulated by Ms Huntington, anyone wishing to comment on or debate the important issues raised by the case have to be wary of breaching the TO and that supresses their freedom of expression. Furthermore, the inability to give personal colour to accounts of the case thwarts attempts to inform and engage a wider public in debate about those issues.[14]I note that to date the only commentary on this case has been online from lawyers and from the others, such as Professor Kitzinger with a particular interest in the workings of the Court of Protection. There has been no coverage in newspapers or the broadcast media.

Legal Framework

[15]The parties are largely but not entirely agreed about the legal framework which I must apply. All Counsel referred the Court to the dicta of Lord Steyn in In re S (A child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1AC 593 at paragraph [17] when he said:
“The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”
[16]In two recent Court of Appeal judgments, Tickle v Surrey CC [2025] EWCA Civ 42, [2025] Fam 105 and PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126, the Master of the Rolls has emphasised that the starting point when considering an application for a derogation from open justice is consideration of Article 10. In Tickle the Master of the Rolls approved what Nicklin J had said at first instance in PMC:
“Whilst, in a very broad sense, in assessing the engaged Convention rights on any application for a derogation from open justice, the court is carrying out a “balance” between them, the scales do not start evenly balanced. The court must start from the position that very substantial weight must be accorded to open justice. Any balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification. That is not to give a presumptive priority to article 10 (or open justice), it is simply a recognition of the context in which the Re S “balance” is being carried out.”
Although the Court of Appeal in PMC (above) overturned the decision made by Nicklin J, the Master of the Rolls reiterated at [91] that when considering a derogation from the common law principle of open justice:
“The Court must start from the position that very substantial weight must be accorded to open justice. The balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification.”
[17]In the same case, at paragraph [89], the Master of the Rolls noted that the authorities drew a “clear distinction” between “the common law power to derogate from the open justice principle in the context of court proceedings and the equitable power to grant an injunction restricting publication of material outside court proceedings against all the world (as in Abbasi).” At paragraph [75] he referred to the judgment of Lords Reed and Briggs in Abbasi v Newcastle [2005] UKSC 15, [2025] 2WLR 815 which involved the continuation, after the conclusion of proceedings, of injunctions to prevent any person identifying the clinicians who had treated the children who were the subjects of the cases under consideration. The Supreme Court accepted that there was jurisdiction to make such injunctions but set out at [128] to [130] the approach to balancing convention rights:
“The proper application of the Convention requires a more structured approach than the concept of “balancing” rights might suggest. In assessing whether there has been a breach of article 10 (or, mutatis mutandis, a breach of article 8), the court begins by asking whether there was an interference prescribed by the law. The next question is whether it pursued a legitimate aim, i.e. an aim which can be justified with reference to one or more of the matters mentioned in article 10(2) (or article 8(2), as the case may be). The remaining question is whether the interference was necessary in a democratic society. It is at that stage that the court may be required to strike a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other: [Axel Springer AG v. Germany (2012) 55EHRR 6 at [84]]. …”
[18]There are few appellate cases concerning the duration of TOs in the Court of Protection but in Hinduja v Hinduja [2022] EWCA Civ 1492, Lord Justice Peter Jackson, giving the judgment of the whole court, surveyed the legal framework from paragraph [27] summarising that:
“The combined effect of Part 4 of the Court of Protection Rules 2017 and Practice Direction 4C, entitled ‘Transparency’ creates a supposition in favour of a public hearing with accompanying reporting restrictions. That is achieved in a rather roundabout way.”
Rule 4.1 states that the general rule is that a hearing is to be held in private but that the court may make an order for a public hearing and when doing so may impose reporting restrictions under r4.3(2). Practice Direction 4A provides that the court will “ordinarily (and so without any application being made)”, make an order that any attended hearing shall be in public and in the same order impose restrictions in relation to the publication of information about the proceedings. The Court is directed to the standard TO but may vary that according to the particular features of the case in hand.[19]The standard order, as reflected in the TO in this case, prohibits not just the publication, but even the communication of the specified information. Accordingly, as Mr Patel KC rightly pointed out, even though the Court of Protection ordinarily sits in public, it is standard practice, in accordance with the COP rules and Practice Directions, for the Court to make an order restricting the publication and communication of information from the proceedings. That is a derogation from the principle of open justice but it is justified because the protection of P, the person who is the subject of the proceedings, is required if the Court of Protection is to sit in public. Most Court of Protections hearings involve evidence and submissions about matters which would ordinarily be private and often confidential. Decisions about personal matters are often made by the Court in P’s best interests when P does not have the mental capacity to make those decisions for themselves. The identification of P during the course of Court of Protection proceedings would be liable to interfere with the decision-making process. It is only because of their lack of mental capacity that P finds himself or herself in court proceedings with hearings in public. Whilst the decision whether to make a TO, and what its terms should be, is for the Judge, the COP Rules 2017 and Practice Directions assume that, ordinarily, the balance of Article 8 and Article 10 rights weighs heavily in favour of making a TO: it would be contrary to the administration of justice, the purpose of the proceedings and manifestly contrary to P’s best interests to allow P to be identified and therefore information about them to be open to the public at large whilst proceedings were continuing. A different approach could be taken but that, at present, is the position prescribed by the law in the form of the COP rules and practice directions.[20]In the very recent Court of Appeal judgment in PMC v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126, the Master of the Rolls, set out a taxonomy of orders:(i) A withholding order (“WO”) to withhold or anonymise the names of a party or a witness including withholding information that would identify that person;(ii) A reporting restrictions order (“RRO”) to restrict the reporting of material disclosed during the proceedings whether in open court or by the public availability of court documents;(iii) An anonymity order (“AO”) to both withhold or anonymise names of a party or a witness and restraining the reporting of material disclosed during the proceedings.[21]Counsel agreed, with some hesitation from Ms Hearnden, that a TO is an RRO. In Hinduja (above) the Court of Appeal referred to the standard TO as an RRO, but it did not have the advantage of the Master of the Rolls’ taxonomy from the subsequent judgment in PMC (above). With respect, the standard TO is, in my view, an AO since it both anonymises the names of parties and others and restricts the reporting of material from the proceedings (material likely to identify not only the anonymised persons, but also where they live and where they are being cared for). If so, then it should be acknowledged that, unlike in civil cases where cases are routinely heard in open court without reporting restrictions, it is standard practice in the Court of Protection to make an AO of the court’s own motion at the outset of the proceedings. That is a derogation from the principle of open justice built in to the COP Rules 2017 and the Practice Directions and “ordinarily” applied. In other contexts the appellate courts have stressed that a WO or an RRO (and therefore an AO which combines them) may only be made if such an order is strictly necessary in the interests of justice – see Scott v Scott [1913] AC 417, A v BBC [2014] UKSC 25, [2015] AC 588, and Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47, [2024] AC 983. This may include the need to protect the identity of a vulnerable person as envisaged by Lord Reed in A v BBC at paragraph [41]. CPR r39.2(4) provides that “the court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of any person.” In contrast, the COP Rules 2017 r4.3 does not restrict the Court’s discretion to impose restrictions on the publication of the identity of a party or other person or restrict the publication of information relating to the proceedings: the rule merely refers to the relevant practice direction, PD 4C, which provides that the court will ordinarily make an order that an attended hearing will be in public and will ordinarily in the same order impose restrictions in the terms of the standard TO approved by the President of the Court of Protection. Hence, some caution is required when applying appellate case law which concerns civil or indeed criminal proceedings, to the Court of Protection.[22]The current standard TO includes the following provisions:
“The subject matter of the Injunction (6) The material and information (the Information) covered by this Injunction is: (i) any material or information that identifies or is likely to identify that: (a) [THE INITIALS CHOSEN TO IDENTIFY P] is the subject of these proceedings (and therefore a P as defined in the Court of Protection Rules 2017), or that (b) any person is a member of the family of the subject of these proceedings (namely [---- INITIALS CHOSEN TO IDENTIFY P -------- ]), or that (c) [ ANONYMISED PERSON ] [ --- ANONYMISED REFERENCE TO ANY OTHER PARTY -- ] is a party to these proceedings, or that (d) [ ANONYMISED PERSON ] [ ----- ANONYMISED PERSON WHOSE IDENTITY SHOULD NOT BE PUBLISHED ----- ] (who the Court has so identified to the parties in private) [ -------- has taken a part in / or been referred to in ----------- ] these proceedings; and (ii) any material or information that identifies or is likely to identify where any person listed above lives, or is being cared for, or their contact details. What the Injunction prevents people from doing (7) Subject to further order of the Court and save as provided by paragraph (9) the Persons Bound by this Injunction shall not by any means (and so orally or in writing or electronically by way of social media or in any other way) directly or indirectly: (i) publish or communicate the Information or any part or parts of it, or (ii) cause, enable, assist in or encourage the publication or communication of the Information or any part or parts of it.”

What the Injunction prevents people from doing

[23]The standard wording is in the present tense – P “is the subject of the proceedings” … “any person is a member of the family of the subject of these proceedings…” This might suggest that the standard TO is intended to be effective only so long as proceedings continue. I am concerned with a case in which the subject of the proceedings has died and I do not need to consider the wider question of the duration of TOs after the conclusion of proceedings where P remains alive.[24]What is the purpose of a standard TO? Is it solely to protect the rights and interests of P or is it also to protect the rights and interests of others? The COP Rules and Practice Directions are not particularly helpful in answering those questions. Paragraph 27 in Part 2 of PD 4A does not apply when a standard TO is made under PD 4C but only when “different or additional restrictions on the publication of information relating to the proceedings are imposed in a subsequent order.” (PD 4A, paragraph 3). Paragraph 27 states that the aim of any such subsequent order “should be to protect P rather than to confer anonymity on other individuals or organisations. However the order may include restrictions on identifying or approaching specified family members, carers etc … in cases where the absence of such restriction is likely to prejudice their ability to care for P or where identification of such persons might lead to identification of P and defeat the purpose of the order.” Thus an additional RRO made subsequent to or alongside a PD4C TO circles back to P. The aim is to protect P even if the anonymisation of other persons is required to achieve that aim. No such “aim” of the standard TO is set out in PD4C.[25]Charles J’s judgment in V v Associated Newspapers [2016] EWCOP 21 persuasively demonstrates, in particular at paragraphs [73] to [78], that Court of Protection cases often involve an invasion into family and private life that extends beyond P’s life “because it can directly and indirectly engage the family life of other members of P’s family …” However, it does not follow that the standard TO made under PD4C is designed to protect the Article 8 rights of anyone other than P.[26]Practice Direction 4C, Part 3, is headed:
“Communication of Information relating to Proceedings Held in Private or Subject to Reporting Restrictions.”
PD 4C, Part 3, paragraph 30 refers both to hearings held in private and proceedings heard in public when the court has imposed “restrictions on the publication of information”. PD4C, Part 3, paragraph 31 states:
“Subject to any direction of the court, information may be communicated for the purposes of the law relating to contempt in accordance with paragraphs 33 to 37.”
Having not heard argument about Part 3 but reading it as a whole, I interpret paragraph 31 as applying paragraphs 33 to 37 of the Practice Direction to hearings in private and to hearings in public where a TO and/or a further RRO has been made. Under paragraph 34, a party is permitted to communicate to a healthcare professional or person or body providing counselling services any information relating to the proceedings for the purpose of enabling the party or a member of the party’s family to obtain healthcare or counselling. It does not permit a party to disclose information to a supportive friend.[27]Read narrowly, the current TO in this case prohibits Ms Huntington from communicating to a friend or relative that she was Mr Gardner’s fiancée. Read less narrowly it prevents her from communicating with a friend or relative that she was Mr Garnder’s fiancée and that he was the subject of these proceedings. The narrower reading would be wholly unworkable and so the wider interpretation must be preferred. Nevertheless, the TO is clearly far reaching. Neither Ms Huntington nor any member of Mr Gardner’s family may communicate any material or information that discloses or is likely to disclose that Mr Gardner was the subject of court proceedings concerning his treatment and his ADRT - and the order carries a warning that breach of it may result in imprisonment.[28]Mr Patel KC accepted that the primary purpose of the TO is to protect the rights of P but contended that that is not its sole purpose. It may also protect the rights of other persons including members of P’s family. Their anonymity may be preserved not merely to protect P from jigsaw identification but also to protect their own rights as individuals. The Fourth Respondent’s case, on behalf of family members, is that the TO can properly be continued in order to protect them for many years ahead. Following Mr Gardner’s death that would become the primary or sole purpose of the TO.[29]The Supreme Court in Abbasi recognised that in cases concerning the serious medical treatment of children, which have some similarities to Court of Protection proceedings concerning the serious medical treatment of P, injunctions restraining publication are often made in circumstances of urgency, in proceedings that are not fundamentally adversarial, and when the Court’s focus is on the best interests of the subject of the proceedings – see [38] to [45]. But the proceedings are also dynamic and the risk involved with allowing publication of information will change over time. At [142] the Court held that whilst some form of injunction is likely to be justified in the first stage of proceedings and indeed whilst the proceedings remain live, “an order is likely to need to be time-limited, either so as to expire automatically at the end of the proceedings or …. So as to expire at the end of a chosen cooling-off period thereafter; subject, in either case, to further application.” I am satisfied that the same reasoning applies to TOs made in Court of Protection proceedings concerning serious medical treatment and in particular when it is likely that P will die if certain orders are made to withdraw or withhold life sustaining treatment. I have already noted that Part 2 of PD 4A does not apply when a standard TO is made, but only when subsequent, different or additional restrictions on the publication of information relating to the proceedings are imposed. But PD 4A, Part 2, paragraph 29 states that:
“Orders should last for no longer than is necessary to achieve the purpose for which they are made. The order may need to last until P’s death. In some cases a later date may be necessary, for example to maintain the anonymity of doctors or carers after the death of a patient.”
That direction now needs to be read in the light of Abbasi. If it applies to additional reporting restrictions then, as a matter of logic, it ought to apply also to the initial TO. Certainly, Abbasi emphasises that open ended orders made during proceedings are to be avoided.[30]Access to documents in Court of Protection cases is governed by COP Rules rr5.9 to 5.12.[31]All Counsel accepted that I should have regard to the well-known “what’s in a name?” dicta of Lord Rodger in In re Guardian News and Media Ltd and others [2010] UKSC 1, [2010] AC 697, paragraph [63]. A requirement to report issues of public interest in some “austere, abstract form, devoid of much of its human interest” could mean that reports or commentary on the issues will not be read.[32]Finally, in terms of this review of the applicable law, I have been referred to the decision of Her Honour Judge Hilder, Senior Judge of the Court of Protection, in In the matter of VS [2024] EWCOP 6. The Judge decided to discharge a TO after the death of P. The Judge carried out the Re S balancing exercise with care and clarity. I note that she did have regard to Part 2 of PD4A which, on my reading, did not apply to the TO which had been made pursuant to PD4C. However, the factors in the balancing exercise have some parallels with those in the present case. HHJ Hilder also wisely noted that “It is not the role of the Court of Protection, still less within its practical ability, to control the accuracy and fairness of reporting. In any event, that is not the meaning of freedom of speech.”

Analysis

[33]In the present case a TO was initially made in accordance with PD4C but later revisions were made with the addition of paragraphs 6(i)(e) to (j) which specified information about Mr Gardner’s circumstances and family which could not be communicated or published. I approved those additions for the sole purpose of preventing the identification of Mr Gardner as the subject of the proceedings. No-one contended otherwise at the hearing on 16 September 2025. I do not regard the additions to the TO as bringing it within the ambit of Part 2 of PD4A. Thus I am concerned with a TO made pursuant to PD4C.[34]I have doubts that the purpose of a standard TO made under PD4C is to protect the interests or Article 8 rights of anyone other than P. The inclusion of family members within the protected information is designed to avoid jigsaw identification of P. No-one would be included in the list of names that cannot be published unless(i) publication of their names would lead to the identification of P, or(ii) their identification would hinder the care given to P or otherwise harm P’s best interests, or(iii) some other very specific justification for their inclusion were put forward. I cannot know what was in the mind of the Judge who made the TO at the outset of these proceedings, but I made the TO in May 2025. The continuation of the inclusion of the family members within the protected information was not discussed. It was not controversial. There was no debate about the purpose of their inclusion. I do not recall any submissions being made that any specific family member required protection from identification for their own sake. On the other hand they had no need to make such submissions because the order already protected their anonymity in any event. Certainly, whilst the substantive proceedings were ongoing, and whilst Mr Gardner remained alive, it was necessary to protect his right to respect of his private and family life, protect the integrity of the proceedings, and to ensure that his treatment was not adversely affected by publicity or communications about information relating to the proceedings outside the courtroom. With the conclusion of proceedings and Mr Gardner’s death, there is no need to protect the integrity of the proceedings nor to protect his own Article 8 rights or his best interests. Those considerations no longer apply. A cooling off period of the kind envisaged in Abbasi has now passed.[35]I accept the observations of Charles J in V v Associated Newspapers (above) that proceedings will often invade the privacy of P’s family members and I note that COP Rule r4.3 provides for the Court to make an order imposing restrictions on the publication of the identity of any party, P, any witness or “any other person”. Nevertheless, the aim of the standard TO made at the outset of proceedings and before the first attended hearing, is to protect P, not to protect the anonymity of others. The standard order may be varied so as to protect others where there is specific justification to do so, but that is a different matter. In this case, I am satisfied that although the matter was never aired in Court during the substantive proceedings, the aim of the TO was to protect the anonymity, interests and Article 8 rights of Mr Gardner and no-one else. The injunction against identifying family members was to serve that aim and any protection of their privacy was incidental.[36]The application made by the Fourth Respondent acting, informally, on behalf of members of Mr Gardner’s family, is in essence a new application to use the TO to protect their privacy after the conclusion of the proceedings. They have not applied for a fresh RRO but seek to extend the TO for a substantial duration in order to achieve a similar effect. They accept that the TO was primarily aimed at protecting P but now wish to use it, after his death, to protect them. The basis for their application is that they do not want certain information or material disclosed in the proceedings (some of which has been included in position statements provided to observers such as the Intervenor) to be communicated to others or published. They very strongly disagree with the characterisation of family relationships set out in the Living Will and Letter to the Presiding Judge which Mr Gardner wrote. Discharge of the TO would allow their names together with such material to be communicated and published. It would also allow for their rebuttal evidence to be communicated and published, albeit that the family ultimately chose not to contest the authenticity of the Living Will. Whilst the family urge the court to respect Mr Gardner’s own wish for privacy, they had agreed to the discharge of the TO on 30 August 2025 prior to my decision that Position Statements ought to be provided on request to observers. This application is not triggered by concern for Mr Gardner’s own privacy rights - if any right to privacy could survive his death – but by concern for their own privacy and reputations. I understand their concerns, but it is important to identify what Art 8 rights are being sought to be protected by continuing the TO.[37]The TO is not well designed to protect the Article 8 rights of the family of the deceased. It was designed to protect Mr Gardner, not them. As it stands it would prohibit communication or publication of information that Ms Huntington’s fiancé was the subject of these proceedings, or that the subject of these proceedings was a dog handler. If the aim of the TO was to protect Mr Gardner when he was alive, or even if, as Mr Patel KC contends, that was its the primary aim, then it is ill-suited to protect the Article 8 rights of others.[38]It would be open to the Court to vary the TO whilst extending its duration, so that it better meets the family’s concerns and purposes. I have already noted some suggestions raised by Counsel for the Fourth Respondent to that end.[39]Although I consider that the proper approach of any person - be they a clinician in the position of those considered in Abbasi, or a family member, seeking to restrict publication of information after the death of P in Court of Protection proceedings - is to make a freestanding application for an RRO, I shall consider the application before me, including consideration of a variation of the terms of paragraphs 6 and 7 of the TO as well as its duration. In doing so I accept, for the purposes of this application, that in principle the Court of Protection does have the power to make an RRO or AO and/or to continue a TO after the conclusion of proceedings when P has died. I do not need to rule whether such jurisdiction exists in order to determine this application.[40]Article 10(2) of the Convention allows for the exercise of the freedom of expression to be subject to restrictions prescribed by law as necessary in a democratic society for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence. Interference with the Article 10 right to freedom of expression is prescribed by domestic law through the COP Rules 2017 and Practice Directions. Following the structured approach set down in Abbasi I approach the question of whether the interference proposed in the present case is necessary by seeking to strike a fair balance when values protected by the Convention come into conflict, i.e. the values protected by Articles 8 and 10. Neither Article has precedence over the other but I also have regard to the dicta of the Master of the Roles in Tickle and PMC (both above).[41]In scrutinising the particular facts and features of the case before me:(i) I reiterate that this case has raised issues of considerable public interest and importance: not only the substantive issues of ADRTs, their validity and applicability, and issues of authenticity, but also clinical, procedural, and litigation issues, such as how clinicians and NHS Trusts should respond when provided with an apparent ADRT, how the Court can deal with allegations of fraud in such cases, and the provision of Position Statements. Moreover, there is a considerable public interest in understanding how individuals such as Ms Huntington and members of Mr Gardner’s family have approached the difficulties that have arisen in this case: where should an ADRT be kept? Who should be told about it? How should it be brought to the attention of medical personnel? How can you contest the document? How can disputes about contact with the seriously unwell individual be resolved and how might a Living Will affect that resolution?(ii) I fully accept the evidence of Ms Huntington in response to the present application. She is fearful of breaching the TO and understandably wishes to communicate with others about her experiences including her experiences of the litigation. The injury and death of her fiancé together with the fraught relations with his family members and the litigation have had a profound effect on her. There are lessons to be learned by her and others and she wishes to air those issues. The TO prevents her from doing that as freely as she would wish. It seriously restricts her freedom of expression.(iii) I also accept that the freedom of expression of commentators such as Professor Kitzinger and indeed members of the media, is also restricted by the TO. Mr Patel KC said that the issues raised by the case can adequately be aired and debated without knowing the identity of the individual family members. It is true that debate could take place but not only would the colour of a human dimension enhance the commentary, reports and debate, but the restrictions imposed on the TO would be likely to impede the free flow of expression of opinion and ideas.(iv) Allowing the naming of Mr Gardner and Ms Huntington in relation to the proceedings would thereby inevitably lead to the identification of members of Mr Gardner’s family. Prohibiting the naming of Mr Gardner as Ms Huntington in relation to the proceedings would be required in order preserve the anonymity of the family members.(v) The standard TO goes beyond the provisions of COP Rules r4.1 because it prevents communication as well as publication of the relevant information. Furthermore, the standard TO, as adopted in this case, is extremely far-reaching. It does not apply “against the world” but it applies to anyone who is aware of the TO, which would, in effect, be almost everyone who becomes aware of the details of this case. The TO significantly impedes the freedom of Ms Huntington, members of the family and anyone else to talk frankly not only about the case and the important issues it has raised, but also their personal experiences surrounding Mr Gardner’s injury and death. His medical care and death are closely linked to the litigation.(vi) The TO bears a penal notice warning of the prospect of imprisonment for a breach of the order. Whilst the experience of the court is that some are blasé about such warnings, for most, including, I accept, Ms Huntington, the warning has a chilling effect. Professor Kitzinger, other observers and commentators and journalists, take the warning extremely seriously.(vii) The circumstances surrounding the production of the ADRT and other documents, the conflict about contact with Mr Gardner in hospital, and the litigation has exposed and deepened a division between Mr Gardner’s family members on the one hand and his fiancée and some of her friends and family on the other. Emotions remain very raw. It is foreseeable that a perceived breach of the TO could result in a committal application.(viii) Continuing the restrictions within the TO, or any of them, until further order or for a period of 10 years, or even 2 years, and so beyond a reasonable “cooling off period”, would add to the profound impact on freedom of expression. Nor is there any logic to the proposals for restrictions to last another 2 years or 10 years. The concerns raised by the family about their reputation or professional careers, for example, will not evaporate after 2 years or even 10 years.(ix) I find the concerns raised by Mr Gardner’s sister in her statement to be highly speculative and overstated. It is difficult to imagine that a client or potential client of a family member would link her to the case, glean information relevant to her professional services, and then cease to use her services because of that information. This case involves a tragedy and family conflict. Mr Gardner wrote some very harsh things about his family but the family disputes his account and there has been no finding that what he wrote was true. There may have been many reasons why he wrote what he did, including that he had a different experience or perception of past events than others. Very many court proceedings held in public involve conflicting evidence about events and relationships. The prospect of any professional regulator taking any action on the basis of the material relating to these proceedings is negligible. I do not suppose that she has any interest in doing so but if, for example, Ms Huntington were to refer material from the proceedings to a regulator, she would expect to be given short shrift. What Mr Gardner wrote is contested. They were his own feelings and thoughts (and his own decisions about treatment) but nothing more. I do not understand the basis for the stated fear that the “community” would shun members of Mr Gardner’s family. They found themselves in a very difficult situation. They decided to contest the authenticity of the ADRT as they were entitled to do. No findings have been made about relationships or behaviour within the family. Friends of Mr Gardner with whom he had shared his own views and feelings might have no time for the family but that would have been the position irrespective of whether there was any litigation.(x) The medical letter provided to me does not establish any significant risk to the health of the individual from the TO being discharged. Mr Gardner’s injury, death and the litigation have naturally taken their toll. There is no evidence before me that any of the family members referred to in the TO are children or vulnerable adults, or persons who are at risk of significant physical or mental harm by reason of discharge of the TO.(xi) It would have been open to Mr Gardner, during his lifetime and when he was able to do so, or for Ms Huntington if she chose to, to repeat the matters Mr Gardner set out in his Living Will and Letter to the Presiding Judge even if no litigation had been brought. It is a sad fact of life that family rifts occur. It is not the role of this Court to protect members of Mr Gardner’s family against the unpleasantness and distress caused by what Mr Gardner has said or the mutual ill feelings between them and Ms Huntington. The law offers protections of different kinds where a person has been defamed, harassed or abused but it is not the purpose of a TO to prevent defamation, harassment or abuse that might arise irrespective of the litigation.(xii) Mr Gardner was part of a large family. I have referred to the professions or circumstances of no more than four individuals but I have not been given specific information about the circumstances of several other members of the family. I have no evidence therefore that they would be at any particular risk from the discharge of the TO than is covered by the generalisations put forward in Mr Gardner’s sister’s statement.(xiii) Continuation of the TO in a revised form, for example by allowing Ms Huntington to refer publicly to Mr Gardner’s name and their relationship but not to disclose any information likely to identify members of his family, would be unworkable in my judgement: identifying Mr Gardner as the subject of the proceedings would thereby lead to the identification of members of his family. Narrowly defined permissions to Ms Huntington or to anyone else, including Professor Kitzinger to communicate information to others might modestly mitigate the restrictions on freedom of expression but the balancing exercise would not, in my judgement, be materially affected.

Conclusion

[42]In the great majority of cases a TO made in Court of Protection proceedings ought to be discharged upon P’s death or within a short period after their death. The appellate courts might say that that should be the rule in all such cases. The purpose of the TO to protect the anonymity of P during the proceedings, or during their life, will have been served. I have considered the competing Article 10 and Article 8 rights in this case. Continuation of the TO, even in a narrower form, would significantly restrict the right to freedom of expression of Ms Huntington and others, including Professor Kitzinger, who wish to be free to discuss the important issues raised by the now concluded proceedings without impediment or fear of being accused of contempt of court. There is a strong public interest in them being free to comment on this case in which personal experiences of matters outside the proceedings are so closely linked to the issues raised within the proceedings.[43]I am unable to identify any countervailing interference with the Article 8 rights of members of the family sufficient to justify the continuation of the restrictions on the Article 10 right to freedom of expression that are imposed by the TO or any varied TO. Even if continuation of some form of restrictive order were justified, I cannot identify any form of TO that would effectively maintain the anonymity of members of the deceased’s family without causing unjustifiable infringement of the Article 10 rights of others. The protection of Mr Gardner’s care, his best interests and his privacy are no longer in issue since his death. The distress and unpleasantness caused by the litigation and the events surrounding Mr Gardner’s injury, hospitalisation and death are raw. They will continue to inflict pain on those close to him and I have no doubt that, for some, they would be exacerbated by publicity about the case. But much of that pain is caused by matters and events which arose before the litigation began and which will not now disappear now that it has ended, even if it were never spoken about publicly. Ms Huntington, Professor Kitzinger and others want to speak and write about the important issues and experiences that arise, not just from the litigation, but from the events and experiences surrounding Mr Gardner’s injury, his management in hospital, and his death. Continuation of the TO injunctive provisions for years after his death would amount to a considerable and unjustifiable interference with the rights and freedoms of them and others. The balance weighs firmly in favour of discharging the TO and removing any restrictions on communicating or publishing information or material relating the proceedings and the public hearings in this case. I refuse the Fourth Respondent’s application and I shall discharge the TO.

Cited in 3 later judgments