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Social Welfare Update: Inherent jurisdiction in relation to vulnerable adults - Guidance on urgent applications

Thursday 17 December 2020

Blog by Tim Baldwin of the Garden Court Chambers Community Care Team.

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

On appeal from a decision of  Mostyn J in 2016 on an “out of hours” application for orders under the inherent jurisdiction the Court of Appeal gave guidance on making and determining without-notice, out-of-hours applications to authorise the deprivation of liberty under the inherent jurisdiction in relation to vulnerable adults.

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The facts

The appellant appealed an order made under the High Court's inherent jurisdiction in respect of vulnerable adults which had authorised the deprivation of his liberty by moving him to hospital.

The appellant had Duchenne Muscular Dystrophy. He had obtained a 2:1 degree in computer science and had been living independently. However, there had been a deterioration in his condition in 2012 meaning he was placed on a ventilator and could be fed via a PEG tube he yet retained capacity to make decisions. He required 24-hour care. His care was provided in his home by carers provided by the Defendant NHS Trust. His family had complained about several carers, and they were removed from the caring team. The Defendant NHS Trust was unable to provide carers over the weekend of 23 and 24 April 2016. On Friday 22 April, believing the appellant was under the influence of members of his family, the Defendant NHS Trust made an urgent without-notice application to the High Court to remove the appellant from his home and transfer him to hospital. A judge sitting out of hours made the order sought. 

The appellant alleged that that decision breached his rights under Article 5 of the ECHR.


Judgment

On allowing the appeal the Court of Appeal held the judge's decision had undoubtedly been wrong and would be set aside. The Court held the judge had failed to adopt the proper approach to such an application. Firstly, the statement given on the Defendant NHS Trust's behalf had not explained whether and why it was necessary to proceed without proper notice to the appellant. Second, the court order did not refer to the fact that the application had been without notice. Third, due in part to the absence of a transcript it was impossible to know whether the judge had addressed the question of notice and, if the judge had in fact addressed this issue, why he had concluded that the circumstances justified proceeding in the appellant’s absence. Furthermore, the order did not identify the jurisdiction the judge had been asked to exercise, nor that it would deprive appellant of his liberty. 

The court held it was impossible to know whether the judge had considered the question of jurisdiction and stated that judges had to consider the test to be satisfied when exercising jurisdiction. Further, it had not been demonstrated that the Defendant NHS Trust had considered the basis on which it applied for the order.

The Court of Appeal held that assuming that there was jurisdiction to make an interim order in an emergency situation, the required standard was that the judge had "reason to believe" that the appellant was being unduly influenced by his family. The court held there was no indication in the order made that the judge had applied that test or on what basis he had concluded that it was satisfied. Nevertheless, even assuming that he had applied the test, there had been manifestly insufficient evidence to satisfy it.

The court held that there had been a clear breach of the appellant’s Article 6 rights and flagrant denial of justice.

It was held that the judgment should be drawn to the attention of the President of the Family Division, for him to consider whether fresh guidance should be given and that the following “lessons to be learnt” were identified in respect of applications under the inherent jurisdiction in respect of vulnerable adults :

  1. Save in exceptional circumstances and for clear reasons, orders should not be made without notice to the individual.
  2. A party who applies for such an order without notice to another party must provide the court with their reasons for taking that course.
  3. Where such an order 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 jurisdiction 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 jurisdiction, that fact should be recorded in the order along with a recital of the reasons for invoking jurisdiction.
  6. An order 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. 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.
     

Comment

It appears the inherent jurisdiction in respect of vulnerable adults  is still considered a vital tool for the courts when confronted with issues concerning vulnerable adults despite the development and expansion of the Court of Protection.

The Court of Appeal in this case did not resolve definitively whether the inherent jurisdiction in respect of vulnerable adults can be used to deprive an adult of their liberty. It is of note that Baker LJ posed the question was whether it could be used “provided the provisions of Article 5 are met”, suggesting that it is clear that it cannot properly be used unless there is evidence, commensurate with the urgency, that the subject person are of “unsound mind,” within the language of Article 5(1)(e) of the ECHR.

It is clear that when this jurisdiction is used it must be used with great care and thorough review of the evidence and issues before the court. It will be of interest to examine  any fresh guidance issued by the President of the Family Division and whether it addresses the issue of deprivation of liberty under the inherent jurisdiction in respect of vulnerable adults.

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