When sick or infirm people lack the capacity to make decisions for themselves, the law steps in to protect them – even against the well-meaning interference of loved ones. In a case on point, the High Court banned publication of a video taken of a mental patient by her son in order to highlight his concerns about her care.
The woman suffered from severe mental health problems and was being cared for in hospital. Often in a catatonic state, she had a history of self-harm and had to wear protective headgear at all times. Her son was dissatisfied with the treatment she was receiving and took a video of her lying in a foetal position in her room.
The NHS trust which bore responsibility for her care launched proceedings after the son put the video on YouTube and a news publisher announced its intention to place the footage on its website. The publisher said that it would pixelate the woman’s face but that it intended to name her son and the hospital concerned.
In granting an injunction against the son and the publisher, restraining any further dissemination of the video, the Court found that the woman lacked capacity to make decisions for herself and was thus incapable of consenting to its publication. The video was potentially degrading and might cause her distress in the future. Its publication would interfere with her right to respect for her privacy, enshrined in Article 8 of the European Convention on Human Rights.
Medical evidence indicated that the woman would regain capacity within weeks and it would then be for her to decide whether to publish the video. Whilst recognising the importance of a free press and freedom of expression, the Court found that there was no immediate urgency in favour of publication and that the balance fell in favour of preserving the woman’s privacy and dignity.