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Court of Appeal ruling on High Court’s ‘inherent jurisdiction’ to protect vulnerable adults

Ros
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in Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors, the Court of Appeal finds that the High Court breached Mr Mazhar’s human rights in ordering that be forcibly taken to hospital, and sets out, at para 74, a number of ‘clear lessons to be learnt’ -

  (1) Save in exceptional circumstances and for clear reasons, orders under the inherent jurisdiction in respect of vulnerable adults should not be made without notice to the individual.

  (2) A party who applies for an order under the inherent jurisdiction in respect of vulnerable adults without notice to another party must provide the court with their reasons for taking that course.

  (3) Where an order under the inherent jurisdiction in respect of vulnerable adults 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 inherent jurisdiction with regard to vulnerable adults 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 inherent jurisdiction with regard to vulnerable adults, that fact should be recorded in the order along with a recital of the reasons for invoking jurisdiction.

  (6) An order made under the inherent jurisdiction in respect of vulnerable adults 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) Finally, and drawing on my own experience of these cases, 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. In this case, the order properly included a direction that “the matter shall be listed for urgent hearing on the first available date after 25 April 2016”. In the event, however, it did not return to court until four weeks later. It has not been necessary to enquire, or reach any conclusion, as to why such a lengthy delay occurred. I would suggest, however, that it will usually be better for the order to list the matter for a fixed return date, say 2 pm on the next working day, either before the judge making the order or the urgent applications judge. Had that occurred in this case, the consequences of the errors made on 22 April 2016 might to some extent have been ameliorated.’

Here’s also a Community Care article on the case -

Court order removing disabled man from home breached human rights