Keywords: Inherent Jurisdiction, Vulnerable adults, Capacity, Undue Influence
Mr. Mazhar was a 26 year old man with muscular dystrophy, who had no learning disability, mental health problem or mental impairment and had capacity to make decisions about his care, treatment and residence.
His medical needs included using a breathing tube which required frequent suctioning (4-5 times per hour) to prevent serious injury or death.
Mr. Mazhar’s care was provided in his home by carers working on behalf of Birmingham Community Healthcare NHS Foundation Trust.
The NHS Trust was unable to provide carers over the weekend of 23 and 24 April 2016. From 21.30 on Friday 22 April, no nurses were available.
Mr. Mazhar’s mother and sisters, with whom he lived, had also been given training in caring for him, including suctioning.
On the evening of Friday, 22 April 2016, Birmingham Community Healthcare NHS Foundation Trust made an urgent, without notice, out of hours application to the High Court under the inherent jurisdiction for authority to remove Mr. Mazhar from his home and treat him in hospital.
The NHS Trust’s case was that there was an imminent risk to Mr Mazhar’s life and welfare on the basis that skilled care was no longer available to Mr. Mazhar at home. The Trust’s application wrongly stated that Mr. Mazhar’s mother was not trained to care for him and it also put forward the unsupported opinion of an employee of the Trust that Mr Mazhar was overborne by the oppressive influence of his relatives.
Mr. Justice Mostyn made the requested order that evening without Mr. Mazhar being notified or having any opportunity to communicate with the court. The order resulted in “the forcible and what is described as the highly distressing removal of Mr Mazhar from his family home at 3 am on Saturday 23 April 2016 by two police officers and the ambulance service.” (para.6). Mr Mazhar did not want to be taken into hospital and, as an adult with capacity, had the right to make that decision. Mr. Mazhar reported “feeling undignified, worthless, irrelevant and frightened. He experienced pain, discomfort and stress and says that he was in shock, had seizures so that he became incontinent of urine, cried and was unable to speak properly for two weeks.” (para. 16)
Mr. Mazhar originally sought both a declaration and damages against the NHS Trust and the Lord Chancellor for breach of his Human Rights (Articles 5, 6, & 8). However, prior to this hearing, Mr. Mazhar and the NHS Trust had reached an out of court settlement in the amount of £10,000 damages. Therefore, the current case sought only a declaration against the Lord Chancellor for breach of Human Rights under Articles 5, 6 & 8.
Article 5 – Right to Liberty
Mr Mazhar sought to argue that the inherent jurisdiction could not be used to detain a person who is not “of unsound mind” (Article 5(1)(e)) and that the inherent jurisdiction was limited to making orders facilitative of the person recovering, retaining or exercising his or her capacity free from duress or undue influence.
The Lord Chancellor’s position was that the use of the inherent jurisdiction to detain and remove a person who has mental capacity to make decisions about his care (but who is a vulnerable adult) to a safe place such as a hospital is a well recognised jurisdiction which acts as a safety net to protect adults who have capacity but are nevertheless vulnerable.
Article 6 – Right to due process
Mr. Mazhar also sought to argue that the urgent, without notice procedure was an unfair process which infringed his Article 6 rights. In his view, the lack of an opportunity to challenge the evidence of the NHS trust himself or through his family or representatives was unfair and was further compounded by the absence of any challenge by the judge to that evidence. Taken together these factors resulted in an unfair process.
The Lord Chancellor’s argument was that the procedure “was neither arbitrary nor unlawful because there are procedural safeguards ie it is a procedure prescribed by law, governed by Rules of Court, Practice Directions and Guidance. It is clearly established by case law which is sufficiently accessible and foreseeable with advice and the jurisdiction’s flexibility is reasoned and justified so that, for example, where detention is permitted there are rigorous safeguards that include regular review.“ (para. 8)
Unfortunately, despite the importance of both issues, neither issue was resolved by this judgment.
Sir Ernest Ryder, Senior President of Tribunals, declined to make determinations on the alleged breaches by the Lord Chancellor on several grounds:
- Judicial Immunity. The Human Rights Act does not explicitly override the constitutional principle of judicial immunity. So the High Court had no power to grant a declaration that a judicial act is a breach of the ECHR.
- Vicarious liability. The Crown (in this case The Lord Chancellor) cannot be held vicariously liable for the acts of the judiciary, so no English court could grant the declaration sought. A claim for damages against the Crown for breach of Article 5(5) would be available but only via the Court of Appeal because the High Court could not rule on the judicial act of a High Court judge; only the Court of Appeal could do so.
Nevertheless, the judgement contains some interesting discussion around the events in this case:
- Sir Ernest Ryder expressed concern about the poor reliability of the information put forward by the NHS trust to support the application for the urgent, no notice order:
“It is also important to acknowledge that some of the evidence provided to the judge was wrong and may have been untruthful. The difference between the recorded prima facie evidence and the agreed facts is stark. The claim against the NHS Trust which deals with those issues has been settled and it is not for this court to give judgment on the failings of the NHS Trust. Some of those failings are however apparent in the differences revealed between the recitals and the agreed facts. The implications are very worrying indeed.“(para. 14)
- There was also a brief discussion of the existing case law on the scope of the inherent jurisdiction, which would seem to support making an order which would prevent harm occurring rather than risking harm which the court could not repair if an order were not made (re SA ), although “Whether that is what was done in this case and, if so, whether that is right must be questions for another place.”(para.11)
Finally, Sir Ernest Ryder concluded:
- “I am acutely aware that I have not decided the important issues that are summarised earlier in this judgment. Although they are issues of the utmost importance, in particular to Mr Mazhar, their identification will come as no surprise to any judge of the Family Division. They are neither new nor novel and many would be surprised to think that the issues are not settled. The extent to which any of those issues needs to be re-considered by the Court of Appeal must itself be the subject of further argument.”(para. 82)
Full judgement available at: https://www.judiciary.gov.uk/judgments/aamir-mazhar-v-the-lord-chancellor/