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Mazhar v Birmingham Community Healthcare Foundation NHS Trust [2020] EWCA Civ 1377

Inherent jurisdiction Mr Mazhar was removed from his home to hospital without warning by police and paramedics in the middle of the night under the High Court's inherent jurisdiction on the basis of an out-of-hours application. (1) 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 amounted to a clear breach of his Article 6 rights and was a flagrant denial of justice. (2) It was unnecessary to decide whether the inherent jurisdiction extends to the making of an order that has the effect of depriving a vulnerable adult of liberty provided the provisions of Article 5 are met. (3) The President of Family Division was invited to consider whether fresh guidance should be given to practitioners and judges about applications of this sort, and the court set out a list of seven clear lessons to be learnt.

Extract from judgment

74. For the time being, I would identify 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.

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Inherent jurisdiction cases🔍

Date: 27/10/20🔍

Court: Court of Appeal (Civil Division)🔍

Judge(s):

Parties:

  • Aamir Mazhar🔍
  • Birmingham Community Healthcare Foundation NHS Trust🔍
  • Naheed Mazhar🔍
  • Lord Chancellor🔍

Judicial history:

Citation number(s):

What links here:

Published: 29/10/20 21:49

Cached: 2020-12-01 11:26:16