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Home > Blogs > Social welfare updates > Out of hours order under High Court’s jurisdiction in relation to vulnerable adults for removal from home and detention in hospital – no claim under HRA 1998 in respect of judicial act

Out of hours order under High Court’s jurisdiction in relation to vulnerable adults for removal from home and detention in hospital – no claim under HRA 1998 in respect of judicial act

10 November 2017, by Bethan Harris

Health care

Bethan Harris

Aamir Mazhar v The Lord Chancellor [2017] EWHC 2536 (Fam), Sir Ernest Ryder, Senior President of Tribunals, 12 October 2017

AM brought a claim for a declaration against the Lord Chancellor alleging breaches of Human Rights Act 1998 arising out of a judicial act, namely an order made in April 2016 by Mostyn J under the High Court’s inherent jurisdiction in relation to vulnerable adults.

The order of April 2016 had been made on the application of an NHS Trust, on an urgent without notice basis, it being asserted that there was an imminent risk to AM’s life and welfare because of a lack of skilled care and that he was overborne by the oppressive influence of his relatives. AM suffers a condition that requires him to breathe through a tube which requires suctioning 4-5 times every hour. AM did not lack mental capacity in relation to decisions as to his care.

The order of April 2016 authorised police and medical professionals to use reasonable and proportionate force to remove AM from his home and to detain him in hospital for treatment. Pursuant to the order AM had been woken in the early hours by police and paramedics and taken to hospital. He was deprived of his liberty. AM described the extreme distress he suffered as a result.

AM’s claim against the NHS Trust had been compromised with an award of £10,000.

AM argued that the inherent jurisdiction cannot be used to detain a person who is not of unsound mind for the purposes of art. 5(1) ECHR, and that the only orders that can be made in that jurisdiction are those that are facilitative of the person recovering, retaining or exercising their capacity.

The Lord Chancellor argued that the inherent jurisdiction was not restricted to re-establishing autonomy and 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 MCA 2005.

In the event, these issues as to the scope of the inherent jurisdiction were not decided in the proceedings, it being held was that the court did not have power to make a declaration against the Crown in respect of a judicial act. If AM wished to pursue his challenge to the order of April 2016 he must do so on an appeal to the Court of Appeal, if permission were granted.

The full judgment is available here: Aamir Mazhar v The Lord Chancellor [2017] EWHC 2536 (Fam), Sir Ernest Ryder, Senior President of Tribunals, 12 October 2017

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