A disabled man’s human rights were breached after he was forcibly removed from his home through a court order obtained without proper evidence or his case being heard, the Court of Appeal has ruled.
The ruling found that Birmingham Community Healthcare NHS Trust wrongly sought – and a judge wrongly granted – an emergency order under the inherent jurisdiction of the High Court in April 2016 to remove Aamir Mazhar to hospital without his being given notice of the application.
This breached his right to a fair hearing under Article 6 of the European Convention on Human Rights, and amounted to a “flagrant denial of justice”, found the Court of Appeal.
Giving judgment, Lord Justice Baker set out a number of lessons (see box), relevant to social workers and their legal advisers, about making applications and orders under the inherent jurisdiction to protect a vulnerable adult. He also referred the judgment to Sir Andrew McFarlane, president of the High Court’s family division, to consider whether fresh guidance should be produced on this issue.
Inherent jurisdiction lessons
- Except in exceptional circumstances and for clear reasons, orders under the inherent jurisdiction in respect of vulnerable adults should not be made without notice to the individual.
- A party who applies for such an order must provide the court with their reasons.
- Where such an order is made without notice, that fact should be recorded in the order, with a summary of the reasons.
- A party who seeks to invoke the inherent jurisdiction in relation to vulnerable adults must provide the court with their reasons for this and identify the circumstances that would empower the court to make the order.
- Where the court is being asked to exercise the inherent jurisdiction with regard to vulnerable adults, this should be recorded in the order along with reasons for invoking the jurisdiction.
- An order made under the inherent jurisdiction in respect of vulnerable adults should include the basis on which the court has found, or has reason to believe, the circumstances are such as to empower it to make the order.
- If an order is made out of hours, it is essential that the matter should return to court at the earliest opportunity.
Community Care Inform Adults users can benefit from guidance – updated to take account of this judgment – on using the inherent jurisdiction to protect vulnerable adults, written by legal editor Tim Spencer-Lane.
Dispute over care
Mazhar, now 30, has Duchenne muscular dystrophy but does not have a mental impairment, and it was accepted by all professionals that he has mental capacity to make decisions about his life, including in relation to care and treatment.
In April 2016, Mazhar was living at home and receiving a 24-hour support package from the trust that involved being on a ventilator, PEG feeding and two-to-one care, when the trust made an out-of-hours emergency telephone application to the High Court for him to be removed to hospital
This was on the basis that it was not possible to arrange care for him the following weekend because several carers had been removed from his support team following complaints from the family.
Trust managers had previously proposed that Mazhar be admitted to hospital over that weekend but both he and his family had opposed it, with his mother suggesting that she and her daughters care for him overnight instead, as they had previously.
While a trust manager told Mazhar’s mother that a court order was being made to put him in a hospital bed, the family were not given specific notice of the application itself. This said the trust was “extremely concerned” that if he was not removed to hospital urgently he could face injury or possible death, on the grounds that overnight carers were not available and Mrs Mazhar had not been trained to provide the specialist care required.
The judge, Mr Justice Mostyn, then granted an interim order allowing police and medical professionals to enter Mazhar’s house, using reasonable and proportionate force, remove him by ambulance to hospital, and for him to be deprived of his liberty there until suitable care could be put in place at home or he could be transferred to another specialist unit. In the early hours of the following morning, two police officers and three paramedics came to remove Mazhar to hospital, having shown him and his family a copy of the order.
‘I felt like a criminal’
In his witness statement, he said he felt “traumatised” by the experience: “I have never had any involvement with the police before and the presence of the police officers made me feel like a criminal in my own home.
I was in shock at being torn away from my family and home in this way.”
While Mr Justice Mostyn’s order stated that the case should return to court at the first available opportunity it did not return until over a month later.
Although a series of subsequent legal claims made by Mazhar that his human rights were breached – against both the trust and the Lord Chancellor as the responsible minister for the courts – were dismissed, he was allowed to appeal against the lawfulness of the original order. Neither the trust, nor the Lord Chancellor contested the appeal.
Drawing on case law, the court found that the inherent jurisdiction could be used to protect a vulnerable adult on an interim basis where there were reasonable grounds that their “capacity or will to decide has been sapped and overborne by the improper influence of another”.
The trust’s application to the court referenced a discussion on that day between its acting clinical lead and Mazhar, with several family members present, at which he said he had a right to stay at home. The trust’s statement said it was the clinical lead’s opinion that “this number of people being with Aamir was oppressive and she cannot say that Aamir was not influenced by their views, which were forcefully expressed”.
‘Manifestly insufficient evidence’
In an application filed after Mr Justice Mostyn’s order, the trust said it believed Mazhar was “under the influence of his mother and other family members” regarding decisions about his care.
Lord Justice Baker found that it was not clear on what basis the trust was applying for an order under the inherent jurisdiction. Though it was possible that it was “seeking to advance the argument that Mr Mazhar was unduly influenced by his family and his will was overborne”, Lord Justice Baker said the “faint terms” in which this was done left him uncertain whether this was the case.
There was also nothing to indicate that Mr Justice Mostyn applied the correct test – that Mazhar was being unduly influenced by his family – and, if so, whether he considered it satisfied and on what basis.
Lord Justice Baker added: “In any event, assuming the judge did apply that test, I find that there was manifestly insufficient evidence to satisfy it.”
He also found no justification in the application or order for Mazhar not being given notice, with the judgment saying it was imperative when making an out-of-hours application to “evidence as robustly as possible the reasons for applying without notice, the jurisdiction they are seeking to invoke, the test to be satisfied in order to exercise the jurisdiction and the basis on which the test is satisfied”.
The information given to Mr Justice Mostyn before he made the order, in this case, was “woefully inadequate”, the judgment said.
Deprivation of liberty question left unanswered
The High Court has used the inherent jurisdiction to deprive a vulnerable adult of liberty on a number of occasions. However, this case marked the first time the Court of Appeal had considered whether the jurisdiction extended to deprivation of liberty – though it declined to rule on this question because there had not been a full argument on the issue.
In an analysis of the judgment on his blog, barrister Alex Ruck Keene said this was “unfortunate”, but added that Lord Justice Baker’s comments in the judgment suggested that the jurisdiction could not be used for deprivation of liberty in cases where the adult was not of “unsound mind”.
“[The] fact that Baker LJ expressly noted that question was whether it could be used ‘provided the provisions of Article 5 are met’ means, it is suggested, that it is clear that it cannot properly be used unless there is evidence (commensurate with the urgency of the situation) that they are of ‘unsound mind’,” wrote Ruck Keene.
‘Need to prevent future injustices’
Mazhar’s solicitor, Yogi Amin, of Irwin Mitchell, said: “The last few years have been difficult for Aamir but [the] judgment is an important ruling in officially recognising his human rights were breached.
“The court hearing is of wider public importance and reinforces the need for public bodies and the courts to ensure that decisions affecting people with disabilities are made with their human rights in mind. The president of the family division has been asked to consider providing fresh guidance to judges and practitioners about these type of applications. I hope that this important ruling and fresh legal guidance will prevent such injustices happening again.”
Responding to the judgment, Birmingham Community Healthcare NHS Foundation Trust said the emergency application was made “in response to a critical situation as the care package provided at Mr Mazhar’s home had broken down to the extent that the trust was unable, despite its best efforts, to find any staff to provide care for him”.
It added: “As it was felt that Mr Mazhar’s life would have been in danger, given the risks that would have resulted from him remaining at home with no professional carers in place, the trust considered it had no option but to seek a court order for his transfer to a place of safety.
“The trust apologised to Mr Mazar at the time and wishes him well.”