View source for ICLR (2020) WLR(D) 579

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[2020] WLR(D) 579

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Court of Appeal

Mazhar v Birmingham Community Healthcare Foundation NHS Trust and others

[2020] EWCA Civ 1377

2020 June 18; Oct 27

Hickinbottom, Newey, Baker LJJ
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''Human rights— Breach of Convention rights— Judicial act— Judge making order on out of hours application authorising removal of adult claimant to hospital under inherent jurisdiction— Claimant seeking declaration that removal and detention constituting unlawful breach of Convention rights— Proper approach to out of hours applications for exercise of inherent jurisdiction in relation to vulnerable adult— Whether order unlawful infringement of claimant’s Convention rights— Whether order to be set aside''

The claimant suffered from a disease which left him in need of full-time care, that was provided at his home by nurses employed by the NHS trust. When such care became temporarily unavailable, the NHS trust formed the view that he would be at risk of severe injury or death if he were not removed to a specialist respiratory centre, but the claimant refused to be moved. On an urgent application by the NHS trust, Mostyn J made an order under the inherent jurisdiction of the High Court authorising the use of reasonable and proportionate force by police and medical professionals to enter the claimant’s home and remove him to the specialist centre. The claimant was duly removed from his home in accordance with that order. He brought proceedings in the High Court against the Lord Chancellor under section 7(1)(a) of the Human Rights Act 1998 by which he sought, inter alia, a declaration that Mostyn J’s order was an unlawful violation of his right to liberty guaranteed by article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The judge dismissed the claim, holding that nothing in the 1998 Act, taken together with the Civil Procedure Rules, created a power in a court or tribunal to grant declaratory relief against the Crown in respect of a judicial act. The Court of Appeal dismissed the claimant’s appeal against that decision, concluding that the appropriate procedural route was by way of an appeal against the order of Mostyn J. However, since the procedural issue had remained live at all material times and the appeal would have a real prospect of success, the Court of Appeal granted permission to appeal out of time against that order. The court subsequently granted the NHS trust’s application to be discharged as a party and the Lord Chancellor chose not to advance any submissions on appeal. Accordingly, the Attorney General appointed an advocate to the court. The claimant sought a declaration that Mostyn J’s order was wrong and should not have been made, on the grounds that (1) where the order sought was for the deprivation of an individual’s liberty, and the application was made without notice to the individual, the judge was always under an obligation to ensure that the proper evidential and legal foundation for the order was made out, which judicial scrutiny was absent in the present case and (2) the order was an unlawful infringement of article 5.1 of the Human Rights Convention since the judge’s errors taken together amounted to a gross and obvious irregularity in the proceedings which had led to a flagrant denial of justice.

On the appeal—

Held, appeal allowed. A judge sitting out of hours was sometimes in a very difficult position, in that he was frequently required to make a decision on an important issue in less than optimal circumstances with incomplete evidence. It was essential that any party seeking to invoke the court’s jurisdiction in those circumstances spelled out as far as possible in the evidence or written submissions the reasons for applying without notice, the jurisdiction they were seeking to invoke, the test to be satisfied in order to exercise the jurisdiction, and the basis on which it was said the test was satisfied in the case in question. It was often impractical to deliver a judgment in those circumstances when sitting out of hours, but practitioners who submitted draft orders, and judges who approved 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. When considering an out of hours application under the inherent jurisdiction of the High Court with regard to vulnerable adults, first a judge had to consider whether it was appropriate for an application to be made without notice to the respondent. Applications made without notice required great care and the closest scrutiny by the court. Secondly, the judge had to identify the jurisdiction he was being asked to exercise. In the present case neither the recitals nor the body of the order contained any reference to the jurisdiction which the judge was being asked to exercise, namely the inherent jurisdiction with regard to vulnerable adults, nor did it specifically refer to the fact that the order would deprive the claimant of his liberty. In the absence of a judgment, it was impossible to know whether the judge had addressed his mind to the question of jurisdiction and the powers which could be exercised under that jurisdiction in respect of vulnerable adults. Thirdly, the court had to consider the test to be satisfied when exercising jurisdiction. Assuming for present purposes that the court had jurisdiction to make an interim order in an emergency situation, the standard required was that the judge had “reason to believe” that the claimant was being unduly influenced by his family. There was nothing in the sealed order to indicate the judge applied that test or, if he did, whether he had concluded that it was satisfied and, if so, on what basis. In any event, assuming the judge had applied that test, there was manifestly insufficient evidence to satisfy it. For those reasons, the judge’s decision to make the order was wrong and it had to be set aside. The trust’s application for, and the granting of, the order for which there was no proper evidence and without giving the claimant the opportunity to be heard amounted to a clear breach of his article 6 Convention rights and was a flagrant denial of justice. However, notwithstanding those criticisms of how the application was made and granted, the errors did not amount to “a gross and obvious irregularity” for the purposes of the article 5.1 claim.. 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 (paras 54, 55, 59–61, 63, 66–71).

Per Curiam. This judgment should be drawn to the attention of the President of the Family Division to allow an opportunity to consider whether fresh guidance should be given to practitioners and judges about applications of this sort ( paras 73, 75, 76).

Quaere. Whether the inherent jurisdiction of the court extends to the making of an order that has the effect of depriving a vulnerable adult of liberty, provided the requirements of article 5 of the Human Rights Convention are met (post, para 33).

Hugh Tomlinson QC and Nick Armstrong (instructed by Irwin Mitchell) for the claimant.

Jonathan Auburn (instructed by Treasury Solicitor) as advocate to the court.

The trust and the Lord Chancellor were neither present nor represented at the hearing.

The respondent mother was not represented but attended via video link.

<p align="right">Isabella Cheevers, Barrister</p>