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Friday, 13 October 2017

Disabled man loses legal fight with NHS Trust over 'forced removal' from home

Written by Brian Farmer

A disabled man who complained a High Court judge acted unlawfully when giving medics permission to take him from home to hospital and authorising the use of force has lost a legal fight.

Aamir Mazhar, who suffers from muscular dystrophy, said an order made by Mr Justice Mostyn, who is based in the Family Division of the High Court in London, infringed his human rights.

But a judge has ruled against him.

Mr Mazhar, who is in his late 20s, said his rights to liberty and respect for private and family life were breached when he was ''forcibly removed'' from his home in Birmingham about 18 months ago.

He took legal action against David Lidington, the Lord Chancellor and Justice Secretary, who has disputed his claim.

A more senior judge than Mr Justice Mostyn analysed the case at a trial in the Family Division of the High Court in London in May.

Mr Mazhar asked Sir Ernest Ryder, a judge in the Court of Appeal, to declare Mr Justice Mostyn's order ''unlawful''.

But Sir Ernest said in a ruling published on Thursday that he had no power to make the declaration asked for.

The judge said if Mr Mazhar wanted to challenge Mr Justice Mostyn's order he should take a different legal route and mount an appeal in the Court of Appeal.

Sir Ernest said in his ruling that Mr Justice Mostyn had made the order on a "specific evidential basis".

Bosses at Birmingham Community Healthcare NHS Trust had asked Mr Justice Mostyn to make the order at an out-of-hours telephone hearing in April last year.

Sir Ernest was told Mr Mazhar had made a separate damages claim against the trust which had been settled.

Detail of that case had emerged at an earlier court hearing.

Lawyers representing trust bosses had said, at a hearing in June 2016, that staff had made an emergency application to Mr Justice Mostyn because they were facing a critical situation.

They said a ''care package'' provided to Mr Mazhar at his home had ''broken down'' and staff thought that he was at risk of serious injury or death.

Lawyers representing Mr Mazhar told Sir Ernest there had been ''no basis'' for the making of the order.

Pushpinder Saini QC, who headed Mr Mazhar's legal team, told Sir Ernest his client had a degree in software engineering and had the mental capacity to make decisions for himself.

''The order resulted in the forcible and highly distressing removal of Mr Mazhar from his family home at 3am in the morning. The removal was by two police officers accompanying the ambulance service," he said.

''One may say the trust is responsible but it is undoubtedly the case that the judge who made the order is also responsible.''

Mr Saini said Mr Justice Mostyn was a ''highly-respected judge''.

He added: ''We say there are serious criticisms to be made of the judge's handling of this application.''

Mr Saini said Mr Justice Mostyn's order resulted in Mr Mazhar being ''forcibly removed from his home and then deprived of his liberty''.

Lawyers representing Mr Lidington disputed Mr Mazhar's claim.

Solicitor Yogi Amin, who works for law firm Irwin Mitchell and represented Mr Mazhar, said Mr Mazhar wanted to try to prevent anyone else going through a similar ordeal.

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