We must choose our words carefully when covering complex legal cases

A recent case that caught the public's attention shows how writers' choice of words can., however unintentionally, create a misleading impression.

Coverage of a court case about a 50-year-old woman whose determination to refuse to treatment after a failed suicide attempt was dubbed by newspapers as an issue about "the right to die", angered some readers. The case of the woman, identified only as C, was heard in the court of protection on 13 November 2015, where King's College Hospital sought a judgement that C lacked the mental capacity to decide whether or not to receive life-saving dialysis.

C did not want it and in this she was supported by two of her daughters. She wished to die. Mr Justice MacDonald ruled that she had the mental capacity to make that decision and the woman died on 28 November. The judgement was published in early December. 

It was a very complex, finely balanced case, which especially caught the public's attention because of the nature of the evidence given by friends and family of the character of C and thus the reasons that lay behind her decision. In fact the 100 paragraphs of the judgement give a vivid picture of a loving family.

In setting out the background to his judgement, Mr Justice MacDonald wrote: "C is a person to whom the epithet 'conventional' will never be applied. By her own account, the account of her eldest daughters and the account of her father, C has led a life characterized by impulsive and self-centered decision-making without guilt or regret. C has had four marriages and a number of affairs and has, it is said, spent the money of her husbands and lovers recklessly before moving on when things got difficult or the money ran out. She has, by their account, been an entirely reluctant and at times completely indifferent mother to her three caring daughters. Her consumption of alcohol has been excessive and, at times, out of control. C is, as all who know her and C herself appears to agree, a person who seeks to live life entirely, and unapologetically, on her own terms; that life revolving largely around her looks, men, material possessions and 'living the high life'. In particular, it is clear that during her life C has placed a significant premium on youth and beauty and on living a life that, in C's words, 'sparkles'." 

Among the complaints to the readers' editor's office was one from Barbara Rich, a barrister who specializes in court of protection cases but has no connection with this case. She commented on a number of articles published by the Guardian. She said the persistent use of the phrase "right to die" was wholly inaccurate; that references to the court of protection dealing with cases involving the "sick and vulnerable" were wrong ; that a feature article was misleading where it described the judge's decision as "freighted with his own attitudes" and that another inaccurately described a passage in the judgement as a "judicial rebuke".

She said: "'Right to die' - in fact no such right exists - is generally understood to mean a claimed right to euthanasia or assisted suicide without penal consequences for doctors or other third parties involved. There is no question of euthanasia or assisted suicide in this court of protection case and none of the various English\cases in which euthanasia or assisted suicide have been discussed in recent years are of any relevance to it... The only issue in the case, which was the subject of the articles, was about whether or not C had the mental capacity to refuse life-saving medical treatment, which is a different question... And the court did not 'grant' C any 'right' or give her any 'permission', nor did she 'demand' any right. Like every adult, she was presumed to have capacity unless the contrary was proved. The court of protection does not deal with cases involving 'sick' people in any general sense ... A person might be 'sick' with incurable cancer but if their mind or brain functioning was unimpaired, the court would have nothing to do with them... Although colloquially it is quite understandable that people who lack capacity or may lack capacity should be referred to as 'vulnerable', there is in fact an important legal distinction... The Mental Capacity Act 2005, under which the court of protection functions, deals only with people who fall within its definition of lacking capacity.

The descriptions of C were taken from the written evidence before the court, including the evidence from C herself, and were largely not the judge's own words. This was not made clear."

Her final complaint concerns one of the five articles she wrote about, which used the case as a basis for exploring "how unconventional, selfish and bloody minded can a person be before they are deemed to have a mental disorder?". She took the phrase "the court judgement was billed almost as a judicial rebuke" to mean that, in the writer's opinion, the judge was issuing a rebuke.

Taking her last point first, I accept the writer's contention that this is a misunderstanding of what he wrote. I think he makes clear in his article that this was a reference "to some of the initial (and pretty misleading) newspaper coverage of the case elsewhere". Of the four other pieces, I think that one, a feature article, does give a misleading impression that what was in fact a summary by the judge of the opinions of C's family of her character was represented as the judge's own views. I put this to Zoe Williams, the writer, who accepts that, while unintentional, it was misleading and apologizes.

The other two areas of complaint illustrate what one of the reporters who used the phrase "right to die" described as the "collision between the precision of law and the slightly more jumbled necessity of telling a story fairly but concisely".

Legally this wasn't about the "right to die", a phrase more often used when people fight court battles to win the right to assisted dying. It was a case about a hospital seeking a judgement that C was mentally incapable of making the decision to refuse treatment.

However, both reporters feel the term was used reasonably, in a manner that would allow a general reader to understand that because the hospital lost, C retained her legal right to refuse treatment. And it may not be the job of the court of protection to deal with sick and vulnerable people but many who pass through its doors are just that, although it would mischaracterize all who do so.

I have sympathy with reporters and subeditors writing for the general reader - one of the uses of the phrase was not in the article but in the subheading - but I think it would have been better to avoid "right to die", which has such strong connotations of assisted dying. I think the uses of the words "sick and vulnerable" were acceptable.