Disabled man wins four-year legal case over home removal which left him ‘distraught and frightened’
A disabled computer science graduate who said he felt “traumatised” after being removed from his home against his will and taken to hospital has won a four-year legal fight.
Aamir Mazhar, 30, argued his human rights were breached when he was taken from his home in the middle of the night and transferred to the Queen Elizabeth Hospital in Birmingham in April 2016 following a High Court order.
Mr Mazhar, who has Duchenne muscular dystrophy and is on a ventilator but has the mental capacity to make decisions for himself, launched legal action after the incident – which saw him removed from his home by two police officers and three paramedics.
Mr Justice Mostyn made an order that Mr Mazhar could be removed and taken to hospital at an urgent hearing following an application by Birmingham Community Healthcare Foundation NHS Trust – which Mr Mazhar was not informed of.
In a Court of Appeal ruling on Tuesday, three judges ruled that the order amounted to a “flagrant denial of justice” and a “clear breach” of Mr Mazhar’s right to a fair trial, enshrined in Article 6 of the European Convention on Human Rights (EHRC).
Lord Justice Baker, sitting with Lords Justice Hickinbottom and Newey said Mr Justice Mostyn was placed in an “invidious position” because the information given to him before he made the order was “woefully inadequate”.
The court said its ruling will be drawn to the attention of the President of the Family Division, Sir Andrew McFarlane, so he can consider whether fresh guidance can be given to lawyers and judges about similar applications.
The ruling included part of a witness statement by Mr Mazhar, in which he said he felt “traumatised” by being removed from home without warning in the middle of the night.
He said: “The Trust’s actions made me feel undignified, worthless and irrelevant, like a small person… I have never had any involvement with the police before and the presence of the police officers made me feel like a criminal in my own home.
“I believe that the only reason I survived that night was because my family was with me.”
Mr Mazhar said he pleaded with police to let him stay at home and felt “distraught, disorientated and frightened” with so many people in his room, adding that he felt he “had no rights”.
He said he started to have frequent seizures following his removal and was unable to speak properly for two weeks after.
He added: “I was in shock at being torn away from my family and home in this way.
“I could not believe what was happening to me, an educated person and a university graduate. I felt worthless.
“I truly feel that I was abandoned and let down by the professionals who were supposed to have cared for me and that my removal from home in these circumstances was unfair and completely unnecessary.”
Yogi Amin, a human rights lawyer at law firm Irwin Mitchell who represented Mr Mazhar, said: “This was an extremely important legal case which sought to establish that a man with mental capacity to make decisions for himself was unlawfully removed from his home and detained in hospital against his wishes.
“The last few years have been difficult for Aamir but today’s court judgment is an important ruling in officially recognising his human rights were breached.
“The court hearing is of wider public importance and reinforces the need for public bodies and the courts to ensure that decisions affecting people with disabilities are made with their human rights in mind.
“The President of the Family Division has been asked to consider providing fresh guidance to judges and practitioners about these type of applications.
“I hope that this important ruling and fresh legal guidance will prevent such injustices happening again.”
Birmingham Community Healthcare NHS Trust had asked Mr Justice Mostyn to make the order at an out-of-hours telephone hearing in April 2016.
Lord Justice Baker said relations between Mr Mazhar and his home carers had deteriorated in early 2016 and “matters came to a head” in April, resulting in two carers being removed.
A member of trust staff suggested he should be admitted to hospital for a short time as they were unable to arrange for new carers, but his family said they would provide overnight support if needed.
However, the member of staff “formed the impression” that Mr Mazhar was “under the influence” of family members and the application was made to the High Court – without Mr Mazhar or his relatives being informed in advance.
He was then removed from home at 3am on April 23, 2016 and taken to the Birmingham hospital before being transferred to Guy’s Hospital in London the following day and, two days later, to a specialist respiratory hospital in Surrey.
The following month, at a further court hearing, he agreed to stay at the Surrey hospital as by that time negotiations were ongoing between his family and their local clinical commissioning group to arrange his return home with appropriate care.
Mr Mazhar made a separate damages claim against the trust, which was settled for £10,000 shortly before it was due to go to a trial in December 2016.
However he continued his legal fight for a declaration that his human rights had been breached, involving a number of court hearings, and previous legal challenges were rejected on the basis they were “procedurally flawed”.
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