FSU intervention helps secure major free speech victory in Abbasi ruling
In a landmark ruling handed down this week, the UK Supreme Court upheld the principle that families have a right to speak publicly about the medical care their children receive, even in the most sensitive and tragic circumstances. The decision is a significant victory for free speech and for public scrutiny of NHS clinical decision-making. It also marks an important moment for the Free Speech Union, which intervened in the case to challenge what it describes as a growing culture of silence around end-of-life care.
The case, Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust, arose from two distressing situations in which NHS trusts sought to withdrew life-sustaining treatment from seriously ill children against the wishes of their parents. In both instances, the hospitals secured wide-ranging injunctions preventing the families from identifying the clinicians involved. These injunctions remained in force even after the children had died.
In challenging those restrictions, the families argued that they were draconian, disproportionate, and no longer justifiable once the children’s lives had ended. The best interests of the child – the original legal basis for the injunctions – were no longer in play. Crucially, the injunctions had not been sought by the clinicians themselves, but by the hospital trusts acting on their behalf.
At the heart of the case was a familiar but fraught balancing act between Article 8 of the European Convention on Human Rights, which protects the right to private and family life, and Article 10, which guarantees the right to freedom of expression. The Free Speech Union, intervening in the case, argued firmly in favour of the latter.
Our legal submissions made clear that the mere possibility of harassment or abuse by third parties could not, in a democratic society, justify prior restraint on speech about matters of public interest. To allow that would be to give a “heckler’s veto” to those most likely to respond to speech with abuse or intimidation. That argument found clear resonance in the Court’s ruling. It held that vague or generic claims of potential harm to clinicians are not sufficient to justify restricting the rights of families to speak out, and that any such restrictions must be supported by specific evidence and a clearly defined, pressing social need.
We also submitted that the law already provides robust tools to deal with harassment and offensive communications, and that these are more than adequate to protect clinicians without suppressing legitimate criticism. The Court agreed. It found that the protections sought by the hospitals already existed in law, and that there was no need to stretch the meaning of Article 8 to create a wider, speech-limiting precedent.
The substance of our arguments was clearly reflected in the Court’s reasoning. The ruling stands as a powerful endorsement of the principle that free speech cannot be curtailed simply because it may cause discomfort to public servants. This is especially true where serious allegations of negligence are involved and public confidence in healthcare services is at stake.
The judgment also addressed the more technical issue of standing: who may assert which rights, and on whose behalf. The Court found that, while hospitals may act to protect their staff during the early stages of urgent proceedings, it is for individual clinicians to seek continued protection once the immediate crisis has passed. Trusts cannot do so on their behalf. That conclusion echoed a central point in our intervention. Rights must be claimed directly and proportionately, not asserted pre-emptively or by proxy.
The Court did not challenge the use of short-term injunctions during the most intense phases of care. But it made clear that such orders must not become indefinite restrictions on speech. Once the clinical emergency has ended, and particularly where there is a clear public interest in transparency and accountability – as in these cases, where one Trust admitted negligence – the law must favour openness.
For the families of Zainab Abbasi and Isaiah Haastrup, the judgment brings long-awaited justice. For the wider public, it reaffirms the right to hold institutions to account. And for the FSU, it marks a quiet but important success. This was a case in which our legal arguments helped ensure that grief could be voiced rather than silenced.
