The Court of Appeal recently set out seven lessons for judges and practitioners in cases where urgent applications without notice are made, after concluding that a disabled man had his human rights breached. Alex Ruck Keene analyses the ruling.
In Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors  EWCA Civ 1377, the Court of Appeal almost, but not quite, answered the question of whether it is lawful to use the inherent jurisdiction to deprive an adult of their liberty. They also gave very helpful interim guidance as to what needs to be done in any application under the inherent jurisdiction in relation to a vulnerable adult.
The case has a very long and tangled procedural history which is – for these purposes – irrelevant. It stems from a without notice application made to Mostyn J as urgent applications judge for an order under the inherent jurisdiction enabling Mr Mazhar to be removed from his home and taken to hospital to provide urgent medical treatment. That application was granted, the order made, and Mr Mazhar removed. There was never any suggestion put to Mostyn J – or indeed subsequently – that Mr Mazhar had a mental disorder, or lacked decision-making capacity in the relevant domains. The key question for the Court of the Appeal was whether Mostyn J could make such an order: Mr Mazhar ultimately pursuing solely a declaration that he was wrong to do so (as opposed to damages, a claim which could have caused some procedural complications).
Can the inherent jurisdiction be used to deprive a vulnerable adult of their liberty?
Baker LJ, giving the sole reasoned judgment of the court, noted that the question of whether an order could be made under the inherent jurisdiction depriving a vulnerable adult of their liberty had never arisen for consideration before the Court of Appeal. However – and frustratingly for those who had been awaiting a definitive pronouncement – he considered that, because of the way in which matters now stood procedurally, it was neither necessary nor appropriate to determine the question. He did, though, make the following observations at paragraph 52:
52. […] The preponderance of authority at first instance supports the existence of this jurisdiction, but there is some authority to the contrary. There is also uncertainty as to whether it is permissible in urgent situations to depart from the Winterwerp criteria, in particular the requirement for medical evidence. The qualification in Winterwerp itself (“except in emergency cases”) suggests that some limited departure may be permissible, although more recent decisions of the European Court have not repeated that qualification. But it could be said that the pragmatic approach of this court in G v E about the difficulties faced by judges dealing with a busy court list applies also, for different reasons, to judges sitting out of hours.
Out of hours inherent jurisdiction applications
Baker LJ made a number of preliminary observations about the difficulty of judges sitting out of hours, including that:
- A judge is not infrequently required to make a decision on an important issue in less than optimal circumstances with incomplete evidence. Unable to wait until more information is available, he or she will have to do the best they can on the limited material in front of them. Sometimes, this will be no more than the scantiest information. This means that it is essential that any party seeking to invoke the court’s jurisdiction in these circumstances spells out as far as possible in the evidence or written submissions 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 it is said the test is satisfied in the case in question.
- The judge’s instinct may well be to err on the side of caution and take the course that seems the least risky to the individual’s physical well-being. This is an example of the “protection imperative”– the need to protect the vulnerable child or adult which may draw the professional and the judge to the outcome that is more protective. This tendency may arise whenever a court is exercising a jurisdiction that is substantially protective in nature. As Munby J noted in Re MM  EWHC 2003 (Fam), the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk. However, this is not easy where it has to be carried out at speed, and particular care is needed where the application is made without notice. Baker LJ drew attention to the observations of Charles J in B v A (Wasted Costs Order)  EWHC 3127 (Fam) (at paragraph 11):
“… there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable …. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed.”
- There is often a chain of professional trust relied on in such circumstance. Inevitably, however, the scope for human error in such a chain will raise, and each person is liable to the feelings described as the “protective imperative” above.
- It is often impractical to deliver a judgment in these circumstances when sitting out of hours, but practitioners who submit draft orders, and judges who approve them, should record in the order at least a summary of the reasons for the decision, for the benefit of any party not present and any subsequent court conducting the next hearing or considering the matter at a later stage in the proceedings.
In the instant case, Baker LJ found that:
71. […] the Trust’s application for, and the granting of, the order for which there was no proper evidence and without giving Mr Mazhar the opportunity to be heard amounts to a clear breach of his article 6 rights and was a flagrant denial of justice. However, notwithstanding my criticisms of how the application was made and granted, I am unpersuaded that this court should go further and declare that the errors in this case amounted to “a gross and obvious irregularity”. In the absence of a judgment, or a clear account of the reasons for the judge’s decision recorded on the face of the order, such a declaration would not be appropriate, particularly having regard to the difficulties faced by judges hearing cases out of hours to which I have already referred. Justice will be served by the decision of this court to allow the appeal and the observations I have already made.
Baker LJ proposed to draw the judgment to the attention of the President of the Family Division to allow him the opportunity to consider, after appropriate thought and consultation whether fresh guidance should be given to practitioners and judges about applications of this sort. For the time being, however, he identified at paragraph 74 the following clear lessons to be learnt:
(1) Save 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.
(2) A party who applies for an order under the inherent jurisdiction in respect of vulnerable adults without notice to another party must provide the court with their reasons for taking that course.
(3) Where an order under the inherent jurisdiction in respect of vulnerable adults 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 invoke the inherent jurisdiction with regard to vulnerable adults 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 inherent jurisdiction with regard to vulnerable adults, that fact should be recorded in the order along with a recital of the reasons for invoking jurisdiction.
(6) An order made under the inherent jurisdiction in respect of vulnerable adults 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) Finally, and drawing on my own experience of these cases, 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. In this case, the order properly included a direction that “the matter shall be listed for urgent hearing on the first available date after 25 April 2016”. In the event, however, it did not return to court until four weeks later. It has not been necessary to enquire, or reach any conclusion, as to why such a lengthy delay occurred. I would suggest, however, that it will usually be better for the order to list the matter for a fixed return date, say 2 pm on the next working day, either before the judge making the order or the urgent applications judge. Had that occurred in this case, the consequences of the errors made on 22 April 2016 might to some extent have been ameliorated.
It is unfortunate that the Court of Appeal could not resolve definitively whether the inherent jurisdiction can lawfully be used to deprive an adult of their liberty, although 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,” in the awkward language of Article 5(1)(e). Pending the giving of such further guidance as the President of the Family Division considers necessary in due course, the “lessons learned” section of the judgment is very helpful in terms of framing practice in relation to these difficult applications – especially in urgent situations. It may also be of assistance to readers to look at the 39 Essex Chambers inherent jurisdiction guidance note and also our guidance note as to without notice hearings (this latter relates to hearings before the Court of Protection, but is equally applicable to applications under the inherent jurisdiction).