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Court of Appeal identifies lessons on out of hours applications after disabled man sees human rights breached

The Court of Appeal has 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.

In Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors (Rev 1) [2020] EWCA Civ 1377 Baker LJ said he would ask the President of Family Division to consider whether fresh guidance was needed.

The case arose over the lack of carers available one weekend from an NHS trust for Aamir Mazhar, who needs constant care due to muscular dystrophy but is not mentally impaired.

He received care from family members and from Birmingham Community Healthcare Foundation NHS Trust but in 2016 relations between them deteriorated when the family objected to certain carers and asked for their removal from the roster.

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Matters came to a head when the trust one day had no second carer available acceptable to the family.

A trust officer then took action to get an urgent place of safety for Mr Mazhar, who was eventually moved to hospitals in London and Surrey before eventually returning to Birmingham. He was not consulted on this.

This application was granted by Mr Justice Mostyn, the duty judge at the Royal Courts of Justice, who was emailed a draft order and a statement. Mr Mazhar was then removed to a hospital by police and paramedics.

Later that year, the Mazhar family sought a declaration and damages against the trust and the Lord Chancellor, who they said were jointly and severally liable for the breaches of Mr Mazhar’s rights under article 5, 6 and 8 of the ECHR.

The trust settled with the Mazhars and paid £10,000 in damages, but the Lord Chancellor argued that the court had no jurisdiction to grant a declaration against him in these circumstances.

Sir Ernest Ryder, senior president of tribunals, heard the case in 2017 and dismissed the claim for a declaration against the Lord Chancellor.

Mr Mazhar unsuccessfully appealed but did win permission to appeal out of time against the original order made in 2016.

Lord Justice Baker said: “A judge sitting out of hours is sometimes in a very difficult position. He or she is not infrequently required to make a decision on an important issue in less than optimal circumstances with incomplete evidence.”

The information Mostyn J was given was “woefully inadequate" and so he was “placed in an invidious position”.

A judge in this situation may well err on the side of caution but should still give their reasons as far as possible, Baker LJ said.

In this case though “recitals in the court order do not spell out in any or any sufficient detail the reasons for the judge's decision.

“There is therefore considerable uncertainty as to precisely why the judge decided to make the order.”

Baker LJ said he was “in no doubt that the decision he reached in this case was wrong” as there was an insufficient basis to justify the order.

He said these lessons flowed from the case:

(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.

Law firm Irwin Mitchell, which acted for Mr Mazhar, said the Court of Appeal had delivered justice and given important legal guidance for everyone. 

Yogi Amin, a human rights lawyer at the firm, said: “This was an extremely important legal case which sought to establish that a man with mental capacity to make decisions for himself was unlawfully removed from his home and detained in hospital against his wishes.”

Mr Amin added: “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.”

Mark Smulian

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