Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors (Rev 1)

An urgent order under the High Court’s inherent jurisdiction concerning a vulnerable adult requires a proper jurisdictional and evidential foundation. Save in exceptional circumstances supported by clear reasons, the individual must receive notice and an opportunity to be heard.

The court must identify the jurisdiction, the applicable test and standard, and whether sufficient evidence satisfies them. An interim intervention based on undue influence requires reason to believe that the adult’s ability to decide freely has been overborne. Vulnerability alone is insufficient.

Without-notice and out-of-hours orders should record the jurisdiction, the factual basis, the reasons for proceeding without notice and a prompt return date. Granting a coercive order without proper evidence or an opportunity to be heard can constitute a flagrant denial of justice under article 6.

The appellant was a physically disabled adult with unimpaired mental capacity who received continuous ventilator and tracheostomy care at home. Following a breakdown in staffing, an NHS trust made an urgent, without-notice telephone application late at night. Mostyn J made an order under the High Court’s inherent jurisdiction authorising entry into the appellant’s home, his removal to hospital and his deprivation of liberty.

The appellant was removed during the night. Subsequent human-rights proceedings against the trust were settled. His claim against the Lord Chancellor was dismissed at first instance and on appeal in Mazhar v Lord Chancellor [2019] ECWA Civ 1558. In that appeal, the Court of Appeal granted permission to challenge the original order out of time.

The central issues were whether the inherent-jurisdiction order had a sufficient jurisdictional and evidential basis, whether the without-notice procedure was lawful, and whether the resulting process breached the appellant’s Convention rights.

1. Appeal allowed. The order was wrong and was set aside. The evidence was manifestly insufficient to establish reason to believe that the appellant’s will had been overborne by undue influence. His physical vulnerability and urgent need for care did not, without more, empower the court to intervene under the inherent jurisdiction.

2. On an urgent application concerning a vulnerable adult, the judge must consider whether proceeding without notice is justified. The judge must identify the jurisdiction invoked, the order sought, the applicable test and standard, and whether the evidence satisfies that standard. The applicant must explain the absence of notice and provide the jurisdictional and evidential basis for relief. These safeguards remain important when an out-of-hours judge must act quickly on limited material.

3. Assuming, without deciding, that an interim inherent-jurisdiction order capable of affecting liberty could be made in an emergency, the relevant standard was whether there was reason to believe that undue influence had deprived the adult of free choice. The trust’s evidence merely expressed uncertainty about possible family influence. It could not satisfy that standard.

4. The application and order failed to explain why the appellant had not been given proper notice or an opportunity to make representations. They did not adequately identify the vulnerable-adult jurisdiction, the deprivation of liberty involved, the applicable test or the basis on which that test was met. Granting the order without proper evidence and without hearing the appellant was a clear breach of article 6 and a flagrant denial of justice.

5. The court declined to decide whether the inherent jurisdiction can ever authorise deprivation of liberty consistently with article 5, or whether an emergency permits departure from the usual requirement for medical evidence of unsoundness of mind. Full argument was required and those questions were unnecessary to the disposition.

6. Future orders should record the absence of notice and the reasons for it, identify the jurisdiction and factual basis, summarise the court’s reasons, and provide for the earliest possible return hearing, ordinarily by fixing a date on the next working day.

1. Court of Appeal (Civil Division), 27 October 2020: Allowed the appeal and set aside the order of 22 April 2016.

2. Court of Appeal, 2 October 2019: In Mazhar v Lord Chancellor [2019] ECWA Civ 1558, dismissed the appeal concerning the proposed declaration against the Lord Chancellor, but granted permission out of time to appeal against the original order.

3. High Court, 22 April 2016: Mostyn J made an urgent, without-notice order under the inherent jurisdiction authorising the appellant’s removal to hospital and deprivation of liberty.