Aamir Mazhar v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | The Senior President of Tribunals |
| Judgment Date | 12 October 2017 |
| Neutral Citation | [2017] EWHC 2536 (Fam) |
| Docket Number | Case No: FD16P00221 |
| Court | Family Division |
| Date | 12 October 2017 |
[2017] EWHC 2536 (Fam)
The Senior President of Tribunals
Case No: FD16P00221
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Pushpinder Saini QC & Mr Nick Armstrong (instructed by Irwin Mitchell LLP) for the Claimant
Mr Sam Grodzinski QC & Miss Joanne Clement (instructed by Government Legal Department) for the Defendant
Hearing dates: 24 & 25 May 2017
Judgment Approved
Sir Ernest Ryder, Senior President:
This is a claim brought under sections 6, 7(1)(a), 8(1) and 9(1)(c) of the Human Rights Act 1998 [' HRA'] against the Lord Chancellor in respect of a judicial act. The act in question is an order made by a High Court judge, Mr Justice Mostyn, who was the Family Division out of hours applications judge on the late evening of Friday, 22 April 2016 ['the order']. The order was made on the application of Birmingham Community Healthcare NHS Foundation Trust ['NHS Trust']. It was an urgent, without notice, out of hours application made in respect of the claimant, Mr Aamir Mazhar.
The order complained of is as follows:
"(I) It is lawful for the police and any medical professionals, as are required, to enter [address] (the property) and use reasonable and proportionate force to do so.
(2) It is lawful for the police and any medical professionals, as are required, to remove Mr Aamir Mazhar from the property and to convey him to an ambulance.
(3) It is lawful for the ambulance service, together with any other medical professionals and police as are required, to convey Mr Aamir Mazhar to the Queen Elizabeth Hospital, Birmingham.
(4) It is lawful until further order for Mr Aamir Mazhar to be deprived of his liberty at the Queen Elizabeth Hospital, Birmingham for the purposes of receiving care and treatment from his arrival on 22 April 2016 and then to be conveyed to the specialist respiratory centre at Guy's Hospital, London until suitable care can be put in place for him at home, or to be transferred to an alternative specialist respiratory unit.
(5) The matter shall be listed for urgent hearing on the first available date after 25 April 2016 (upon application to the Clerk Rules (sic)).
(6) There be leave to serve this order without a Court seal until 16:00 on Monday 25 th April 2016."
Clause 4 of the order was discharged by Holman J on 23 May 2016 after the order had been put into effect but the balance of the order remains in force. It has neither been appealed, nor otherwise varied or set aside.
Mr Mazhar's claim as originally pleaded is for a declaration that the NHS Trust and the Lord Chancellor breached his rights under articles 5, 6 and 8 of the European Convention on Human Rights ['the Convention'] and for damages against the NHS Trust for breaches of articles 5, 6 and 8 of the Convention and against the Lord Chancellor for breaches of article 5 of the Convention.
On 8 December 2016 Mr Mazhar compromised his claim against the NHS Trust by accepting a CPR Part 36 offer of damages in the sum of £10,000. Accordingly, that part of the claim is stayed by operation of law (see CPR 36.14). The Lord Chancellor was notified of that in writing on 14 December 2016. Mr Mazhar confirmed that in light of the settlement of his claim against the NHS Trust he no longer seeks damages against the Lord Chancellor. The remedy pursued in these proceedings is for a declaration.
The pleaded consequence of the order made by Mostyn J is 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. Mr Mazhar was and is a young man who has the capacity to make decisions for himself. It is submitted on his behalf that there was no basis in law for the order to be made or for the actions taken in accordance with it.
Mr Mazhar seeks to argue that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of article 5(1)(e) of the Convention and that a vulnerable person's alleged incapacity as a result of duress or undue influence is not a basis to make orders in that jurisdiction that are other than facilitative of the person recovering, retaining or exercising his capacity. His removal and detention were accordingly unlawful and in breach of article 5. He also seeks to argue that his article 6 rights were engaged such that the absence of any challenge by the judge to his capacity and/or the evidence of the NHS Trust and the absence of any opportunity to challenge those matters himself or though his family or representatives before the order was executed was an unfair process. He says that his article 8 right to respect for family and private life was engaged and that the order was neither necessary nor in accordance with the law.
The Lord Chancellor concedes that Mr Mazhar was deprived of his liberty when he was removed from his home and taken to hospital and accepts that he was not a person of unsound mind within the meaning of article 5(1)(e) at the date of the order. He does not however accept that the broader proposition that the inherent jurisdiction is limited in the way suggested on behalf of Mr Mazhar and in particular that it can only be used to facilitate the re-establishment of autonomy. He argues that its use 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 persons who fall outside the scope of the Mental Capacity Act 2005. He contends that use of the jurisdiction to detain is 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.
The Lord Chancellor does not accept that there were procedural failings such that the detention was unlawful within the meaning of article 5 of the Convention or unfair at common law. He avers that in any event the threshold of 'gross and obvious irregularity' is not met. The procedural protections for anyone deprived of their liberty are the lex specialis of article 5(4) and provide equivalent protection to article 6 which the Lord Chancellor submits is not engaged. Any breach of article 8, which is not admitted, is justified by being in accordance with the law, necessary and proportionate.
As will become plain and for the reasons I set out below, I have decided not to make determinations about the breaches that Mr Mazhar alleges are the consequence of the judicial act. I have come to that conclusion because it is inappropriate for this court to determine the substantive and procedural issues that the parties describe.
On any basis, it is common ground that the without notice hearing before the judge was urgent because the NHS Trust's case was that there was an imminent risk to Mr Mazhar's life and welfare and Mr Mazhar was overborne by the oppressive influence of his relatives. The judge was told that Mr Mazhar breathed through a tube that required suctioning four to five times every hour. Without the skilled care that was necessary to provide suctioning Mr Mazhar would have been severely injured or would have died. The NHS Trust made the application on the basis that skilled care ceased at 2130 on Friday 22 April 2016. The order was made almost exactly two hours later. It is part of the jurisprudence that the Lord Chancellor submits is applicable to an urgent without notice application in the inherent jurisdiction that a court in such circumstances is "not to risk the incurring of damage … which it cannot repair, but rather to prevent the damage being done": Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 18 as applied to vulnerable adults in In re SA [2006] 1 FLR 867 at [103]. Whether that is what was done in this case and, if so, whether that is right must be questions for another place.
There are important procedural issues which need to be addressed in setting the context of this claim. Before I do so, it is important to focus on Mr Mazhar. He has given oral evidence in these proceedings and facilities were made available to convert a family court in the Royal Courts of Justice into a medically appropriate space for him, his family, professional carers and healthcare support. He participated in the first day of the proceedings. He gave oral evidence by using family intermediaries in order that all of his speech might be understood. No objection was taken to this course, indeed it was welcomed by everyone. Where comprehension became difficult, and it did, the question and the answer as understood by the intermediary were put in to writing to enable Mr Mazhar to confirm or deny the record of his evidence. Mr Mazhar was able to communicate his agreement or disagreement and the essence of what he wanted to say.
This court has heard no oral evidence other than that of Mr Mazhar and his mother. No other witnesses were tendered to give evidence. That is not surprising given the limited nature of the issues that remain and the fact that the disputed issues of fact surrounding the application have been overtaken by the settlement of the claim against the NHS Trust who do not formally take any part in the proceedings that remain between Mr Mazhar and the Lord Chancellor. As a consequence of case management that I undertook on 11 May 2017, there is a statement of agreed facts. No party seeks to pursue findings of fact that go...
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