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Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors (Rev 1) [2020] EWCA Civ 1377

An appeal against a decision of Mostyn J in 2016 on an ‘out of hours’ application for orders under the inherent jurisdiction against Mr Mazhar, which orders resulted in Mr Mazhar, then aged 26, being removed from home to hospital. The appeal raises important issues about how such applications should be dealt with in the future, with a proposal that the judgment of the court be brought to the attention of the President of the Family decision to allow him to consider whether fresh guidance to practitioners and judges.

Background
The appellant suffered from Duchenne Muscular Dystrophy, but had previously obtained a 2:1 degree in Computer Science, living independently at that time with care support. A deterioration in his condition in 2012 meant he was placed on a ventilator, but could feed through a PEG tube and his mental capacity was unimpaired. He lived at home and for much of his life his care had been supervised by his mother, assisted by his sisters, in what is a close family. In 2016 relations between carers, provided by the Health Trust, and the family soured, with complaints being raised by the family. It was asserted by the Trust that this resulted in insufficient staff cover over the night of 22.4.2016. There was a disagreement as to whether the Trust had agreed to the family managing care in the interim, and latterly, the Trust asserted that Mr Mazhar was under the influence of his family and mother, the Trust being of the opinion, that, given Mr Mazhar was communicating with the Trust in the presence of his mother, aunt, 2 sisters, a brother and another unknown adult "…that this number of people being with Aamir was oppressive and [the Trust] cannot say that Aamir was not influenced by their views, which were forcefully expressed." – a curious double negative. An application for removal of Mr Mahzar was then put on foot on the basis that he was vulnerable, the Trust had not been able to speak to Mr Mahzar alone and that the Trust was concerned he had not been able to express himself freely. Coincidentally, Mrs Mahzar, the mother, had spoken to her solicitor the evening of the application informing of her concerns about the Trust's conduct, but did not mention an imminent court hearing. There was a dispute as to whether the family, via the mother, had been notified. The Trust instructed Counsel to make the application and contacted the Official Solicitor to see if Mr Mahzar could be represented, but were unable to get through. The order was at roughly 11 pm in the evening, and at 1 am on the following morning, Mrs Mazhar was told that Mr Mahzar would be removed to hospital. It took 2 uniformed officers and 3 paramedics 2 hours to remove Mr Mahzar, such was the extent of his physical disability. He remained in hospital in Birmingham briefly being thence removed to Guy's, London, and 2 days later to a specialist respiratory hospital in Surrey. Mr Mahzar described the experience as traumatising and excruciating, and said he hoped no one would ever again have to experience what happened to him.

The proceedings

Although the order provided that a further hearing would be listed to consider the matter, none was, as the Trust's solicitor believed that she had been told by the court duty officer that as the application had been issued pursuant to the usual undertaking, one was not required. The duty officer said she did not recall saying this to the Trust's solicitor, and that her normal practice was to inform parties they should contact the list office for a hearing, and there was no reason for her to depart from her usual practice. Later, solicitors acting for Mr Mahzar sought a hearing, the Trust indicating that they had no further role, as Mr Mazhar was in Surrey, and that the CCG should be involved in ongoing proceedings regarding his care.

Before Holman J in May and June Proceedings became more complicated, with Mr Mazhar challenging the lawfulness of his detention and indicating he wished to pursue a human rights claim. The paragraph of the order of 22.4.2016 authorising Mr Mazhar's detention was discharged. At hearings in June 2016 directions being made joining the proposed human rights claim and the Lord Chancellor was made a party.

In his human rights claim Mr Mahzar alleged, inter alia, that the Trust failed to identify the jurisdiction it was seeking to invoke nor to identify how the inherent jurisdiction was invoked, applied for an order in excess of jurisdiction, failed to take any reasonable steps to enable Mr Mahzar to participate, failed to provide any evidence that he was of unsound mind and unlawfully procured the deprivation of his liberty.

As against the Lord Chancellor, Mr Mahzar alleged, inter alia, that the judge had exceeded the inherent jurisdiction of the High Court and had unlawfully authorised a deprivation of liberty and had made the order, inter alia, without giving Mr Mahzar an effective opportunity to participate nor considering whether he had jurisdiction to do so. Mr Mahzar sought declarations that his Art 5 & 6 and 8 rights had been breached, and for damages under those articles against the Trust and under Art 5 against the Lord Chancellor.

Prior to trial, the Trust settled the claim for £10,000, and Mr Mazhar indicated that, although he no longer sought damages, he still sought a declaration against the Lord Chancellor, who, latterly, filed an amended defence asserting that the court had no jurisdiction to grant a declaration, that being accepted by the court at first instance (cit. [2017] EWHC 2536 (Fam) and [2018] Fam 257), and upheld for different reasons in the Court of Appeal (cit. Mazhar v Lord Chancellor [2019] ECWA Civ 1558 and [2020] 2 WLR 541).

Whilst dismissing the appeal, the Court of Appeal also granted the appellant permission to appeal out of time against the original order of 22 April 2016 and, although it was generally correct that the Lord Chancellor would not be a necessary or even appropriate person to be joined to such an appeal, in the present case there remained a formal claim for damages against the Lord Chancellor and, in view of the Lord Chancellor's late change of position as to jurisdiction, there was no reason why the damages claim should not be continued against him. In those circumstances, the Court concluded that the Lord Chancellor was a person interested in the outcome of any appeal against the order of 22 April 2016 and a proper person to be joined to it, although the Court stayed the appellant's claim for damages against the Lord Chancellor pending determination of the appeal.

The Court observed that the appeal would have to be against the Trust as well as the Lord Chancellor but, as the Trust did not appear at the hearing, it was given permission to apply for a stay of the order granting permission to appeal, or to be discharged as a party. Subsequently the Trust applied to be discharged as a party to the appeal and it so was discharged. The Lord Chancellor then declined to make any submissions regarding the appeal and, as the court was faced with the prospect of no opposition to the appeal, the court requested the Attorney-General to appoint an advocate, which he duly did. At the hearing of the appeal, the appellant indicated that he only maintained a damages claim to found jurisdiction for his claim for a declaration that Mostyn J's order was wrong.

The appeal
The court confirmed that the inherent jurisdiction to protect a vulnerable adult may be exercised on an interim basis where there are reasonable grounds to believe that a vulnerable adult's "capacity or will to decide has been sapped and overborne by the improper influence of another". The more difficult question was whether the jurisdiction could be invoked to deprive such an adult of their liberty, the court noting a number of first instance High Court decisions that indicated there was such a jurisdiction, so long as the exercise of the jurisdiction was compatible with Art 5. There was also one contrary High Court decision. The court then considered Art 5, noting Winterwerp v Netherlands (1979) 2 EHRR 387, which stated:-

"...[E]xcept in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the component national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends on the persistence of such a disorder...."

The court noted cases where the requirement for medical evidence establishing mental disorder was emphasised, and that it had not been referred to any authority qualifying Winterwerp, "except in emergency cases", noting that the ECHR had suggested that it may be acceptable in urgent cases for the medical opinion to be obtained immediately after detention, but had also recently stated that the permissible grounds for detention under Art 5 (1) should be interpreted narrowly. The court also reminded itself of the observations in G v E [2010] EWCA Civ 822, [2012] Fam 78, of the difficult balance to be struck in heavy Family Division lists between the urgency to make a decision and the nature of evidence required to make it, and that, at times, it will be impractical to get the requisite evidence in the light of urgency.

The court then considered the potential breach of human rights by judicial act, noting that a claim for damages on this ground succeeded in LL v Lord Chancellor [2017] EWCA Civ 237, [2017] 4 WLR 162 on the basis that the judge's errors, in cumulative effect, amounted to "gross and obvious irregularity."

The court concluded that there was no need to decide whether there was jurisdiction to deprive an adult of his liberty who is subject to duress and therefore incapable of exercising choice, the court concluding that, on the basis of the Trust's evidence namely 'that th[e] number of people being with Aamir was oppressive and [it] cannot say that Aamir was not influenced by their views, which were forcefully expressed.', there was no evidence which could conceivably amount to duress. The court noted that judges sitting out of hours are in a very difficult position, in less than optimal circumstances with, at times, no more than the scantiest information, in this case, woefully inadequate information and that the judge's instinct may have been to take the course that seemed least risky, an example of protection imperative, a tendency that may draw professionals and judges alike to the more protective outcome, particularly where there is little time for lengthy reflection and/or "identification, evaluation and management of perceived risk". Often a court will be reliant on a chain of professional trust, with each link being liable to feelings of protective imperative, which can lead to greater scope for human error. The court felt hindered by the absence of any indication for the reasons for the judge's decision.

The court concluded that:

1) The judge should have considered whether to proceed absent notice to the appellant, and there was no evidence to explain why, in this case, it was necessary.

2) There was nothing in the recitals or the order that contained a reference to the specific jurisdiction being exercised, namely that with regard to vulnerable adults [there was an erroneous heading referring to the Court of Protection], nor that the order would deprive Mr Mazhar of his liberty;

3) There was nothing to indicate the judge applied the correct test to exercise the jurisdiction, i.e. that he had 'reason to believe' that Mr Mahzar was being unduly influenced by his family, the court noting that the ex post facto grounds in the later application referring to his physical condition were insufficient to justify the order. Even if the judge had applied the test, there was manifestly insufficient evidence to satisfy the test.

4) It was unable to conclude that there had been "a gross and obvious irregularity" given it was an out of hours application and there were no clear reasons or judgment underpinning the order.

The court held that there had been a clear breach of Mr Mazhar's Art 6 rights and a flagrant denial of justice.
The court then set out 'lessons to be learnt' from the case. With respect to applications for and orders 'in respect of vulnerable adults under the inherent jurisdiction':-

(1) Save in exceptional circumstances and for clear reasons, orders should not be made without notice to the individual.

(2) A party who applies for such an order without notice to another party must provide the court with their reasons for taking that course.

(3) Where such an order is made without notice, that fact should be recorded in the order, together with a recital summarising the reasons.

(4) A party who seeks to the jurisdiction must provide the court with their reasons for taking that course and identify the circumstances which it is contended empower the court to make the order.

(5) Where the court is being asked to exercise the jurisdiction, that fact should be recorded in the order along with a recital of the reasons for invoking jurisdiction.

(6) An order should include a recital of the basis on which the court has found, or has reason to believe, the circumstances are such as to empower the court to make the order.

(7) If an order is made out of hours in this way, it is essential that the matter should return to court at the earliest opportunity.

Hence the court indicating that the case be brought to the President's attention for consideration of fresh guidance.

Summary by Barry McAlinden, barrister Field Court Chambers

Read the full judgment of Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors (Rev 1) [2020] EWCA Civ 1377 on BAILII