“As a result of these allegations, the staff involved had been removed from the care package due to safeguarding concerns and attempts have been made to obtain further staff. So far, these attempts have been unsuccessful and mother has been advised that some of the shifts of care cannot be covered as a result. From 9:30 pm tonight (22.4.16) there are no care staff available to care for Aamir. Mrs Mazhar has asked the Trust to bring back the staff who have been removed, to cover the care but this is not a possibility for two reasons: 1. There is an open safeguarding investigation into the staff and it would be potentially dangerous to allow them to provide care until the investigation has been concluded; 2. These staff are no longer available to provide care. Mrs Mazhar has been advised that if the care package cannot be staffed, Aamir will need to be transferred to a centre that can provide care as a place of safety until the package can be staffed adequately. This will mean transferred to an intensive care unit in order for staff with experience of ventilation to care for him. For most of the day Mrs Mazhar has refused access to Aamir to staff from the Trust who wanted to discuss the care package and the need for ITU care if the package breaks down tonight. At approximately 7pm tonight Tracey Littlehales, Acting Clinical Lead Complex Care Coordinator was allowed to speak to Aamir. Aamir confirmed that he had a right to be at home but at the same time, needed to have care. Due to the breakdown of the care package this is not possible. With Aamir at home when he was communicating with Ms Littlehales were his mother, aunt, two sisters, brother and another unknown adult. It is Ms Littlehales’ opinion that this number of people being with Aamir was oppressive and she cannot say that Aamir was not influenced by their views, which were forcefully expressed. Aamir requires suctioning of secretions through his tracheostomy tube 4-5 times every one to two hours so will need regular suctioning over night. The present carers finish their shifts at 9.30pm and are not able to stay later. This leaves Aamir at significant and likely risk of severe injury or death if he is not given appropriate care over night. Mrs Mazhar has demanded training this evening to provide suctioning to Aamir but this is not possible in such a short timescale. On a telephone call this evening Mrs Mazhar is now saying that she can provide care and is trained to do so, but this is not the case. We have advised her we will need to make an application to the court and she still refuses to allow us to move Aamir to an intensive care unit. I and my colleagues are now extremely concerned that if we are not able to remove Aamir to an intensive care unit as a matter of urgency, he will have no ventilator/tracheostomy care tonight and could suffer injury or death.”
“ON A. an application made by telephone by Mr Fullwood of counsel, instructed by Birmingham Community Healthcare NHS Foundation Trust (the Trust); B. reading the witness statement of Liza Walsh made today; C. the court being informed in that witness statement that (i) Mr Aamir Mazhar (dob 6.11.89) resides at home at [address] with his mother Mrs Naheed Mazhar where he receives care from specialist carers trained in providing tracheostomy care to ensure that his ventilator continues to function safely including suctioning 4 to 5 times every hour; (ii) that Mrs Mazhar has refused to allow carers to continue to provide such care and has otherwise behaved in such a way so as to cause the care providers to refuse to continue to provide such care; (iii) that the Trust has been unable to secure suitable alternative care at home at such notice despite taking proper steps to do so; (iv) that Mr Mazhar told a senior nurse from the Trust that he was allowed to stay at home whilst also saying that he needed care and treatment but not appearing to understand that he could not receive such care and treatment at home and that without it he would be at serious risk of harm or even death; and (v) that Mrs Mazhar has been repeatedly asked to agree to Mr Mazhar being admitted to 16. hospital but has refused such requests stating that she has been trained to provide specialist care when she has not received any such training. D. Mr Fullwood of counsel undertaking on behalf of the Trust that the application together with the relevant fee will be lodged with the court by 4pm on25 April 2016 .”
“IT IS ORDERED:- 1. 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 on22 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 for him to be transferred to an alternative specialist respiratory unit. 5. The matter shall be listed for urgent hearing on the first available date after25 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 April 2016 . Dated 22nd Day of April 2016.”
“In light of the settlement with the First Defendant, the Claimant no longer seeks a payment of damages against the Second Defendant. However, the Claimant still seeks a declaration from the Second Defendant ….”
“77. It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. 78. I should elaborate this a little: i) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint, even if the restraint is only of the kind referred to by Eastham J in Re C (Mental Patient: Contact)[1993] 1 FLR 940 . It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do. ii) Coercion or undue influence: What I have in mind here are the kind of vitiating circumstances referred to by the Court of Appeal in In re T (Adult: Refusal of Treatment)[1993] Fam 95 , where a vulnerable adult's capacity or will to decide has been sapped and overborne by the improper influence of another. In this connection I would only add ... that where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may, as Butler-Sloss LJ put it, be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result. iii) Other disabling circumstances: What I have in mind here are the many other circumstances that may so reduce a vulnerable adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others. 79. I am not suggesting that these are separate categories of case. They are not. Nor am I suggesting that the jurisdiction can only be invoked if the facts can be forced into one or other of these headings. Quite the contrary. Often, indeed, the facts of a particular case will exhibit a number of these features. There is, however, in my judgment, a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors. 80. It will be noticed that I have referred to the inherent jurisdiction as being exercisable not merely where a vulnerable adult is, but also where he is reasonably believed to be, incapacitated. As I have already pointed out, it has long been recognised that the jurisdiction is exercisable on an interim basis "while proper inquiries are made" and while the court ascertains whether or not an adult is in fact in such a condition as to justify the court's intervention. That principle must apply whether the suggested incapacity is based on mental disorder or some other factor capable of engaging the jurisdiction. As Singer J put it in Re SK (Proposed Plaintiff) (An Adult by way of her LitigationFriend)[2004] EWHC 3203 (Fam) para [9], and I agree, the court has power to make orders and to give directions designed to ascertain whether or not a vulnerable adult has been able to exercise her free will in decisions concerning her civil status.”
“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law: … (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
“the permissible grounds for deprivation of liberty listed in Article 5(1) are to be interpreted narrowly.
“In order for the detention to be “lawful” and not arbitrary, the deprivation of liberty must be shown to have been necessary in the circumstances …. The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest ….”
“It is a fact of life in every legal system that individuals sometimes go to prison pursuant to court orders which are subsequently set aside. Both under our domestic law and under Strasbourg jurisprudence, there are strict limits upon the rights of such individuals to recover compensation.” 46. Having then set out that law and jurisprudence in some detail, he distilled from the authorities the following principles relevant to the case then before the Court: “(1) A period of detention is lawful if, and only if, it complies with the applicable subparagraph of article 5(1). (2) In the case of detention under article 5(1)(b): (i) the underlying court order or legal obligation must be one with which it was feasible for X to comply. And (ii) the period of detention must be proportionate to that which X was required to do, but failed to do … (2) In the case of detention under article 5(1)(b): (i) the underlying court order or legal obligation must be one with which it was feasible for X to comply. And (ii) the period of detention must be proportionate to that which X was required to do, but failed to do … (i). the court acted without jurisdiction. Or (ii). there was a gross and obvious irregularity in the court’s procedure. Or (iii). the court made an order that had no proper foundation in law, because of a failure to observe a statutory condition precedent. Or (iv). X’s detention was arbitrary. In other words the stated grounds for that detention did not comply with the general principle of certainty. Or (v). there was one or more breaches of article 6 during the proceedings which was so serious as to amount to a flagrant denial of justice …. (4). In considering whether the court’s errors amounted to ‘gross and obvious irregularity’ or ‘flagrant denial of justice’, where appropriate the cumulative effect can be considered.”
“118. The fact is that in this type of case the court is exercising an essentially protective jurisdiction. The court should intervene only where there is a need to protect a vulnerable adult from abuse or the real possibility of abuse …. The jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. That said, the law must always be astute to protect the weak and helpless, not least in circumstances where, as often happens in such cases, the very people they need to be protected from are their own relatives, partners or friends …. 119. …. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk. 120. A great judge once said, "all life is an experiment," adding that "every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge" (see Holmes J in Abrams v United States(1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person's happiness. What good is it making someone safer if it merely makes them miserable? 121. One of the most important factors to be taken into account is the vulnerable adult's wishes and feelings…. If it is elementary that the inherent jurisdiction is exercised by reference to the vulnerable adult's best interests, it is equally elementary that in determining where such an adult's best interests truly lie it is necessary….”
“… there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable …. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed.” “… there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable …. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed.”
“We have advised her [Mrs Mahar] we will need to make an application to the court and she still refuses to allow us to move Aamir to an intensive care unit.”