ZH v The Commissioner of Police for the Metropolis

Where the Mental Capacity Act 2005 applies, force or restraint is lawful only if its statutory conditions are satisfied. The decision-maker must reasonably believe that the person lacks capacity, that the act is in the person’s best interests, and, where restraint is used, that it is necessary and proportionate to prevent harm. Relevant carers should be consulted where practicable and appropriate, and less restrictive alternatives must be considered.

The common-law defence of necessity cannot circumvent those safeguards. Public authorities must also make reasonable adjustments for disabled persons. In this case, failure to consult carers, assess the situation calmly, consider alternatives and use force only as a last resort breached the Act, the Disability Discrimination Act 1995 and Articles 3, 5 and 8 of the Convention.

The claimant, a severely autistic and epileptic sixteen-year-old who lacked capacity and could not communicate by speech, was taken to a swimming pool by school staff. After he stood near the pool, the pool manager called the police, inaccurately describing him as aggressive and trying to enter the water.

The police approached and touched him without first consulting his carer. He entered the pool, was forcibly removed, restrained by police and lifeguards, handcuffed and placed in a police van. He claimed assault and battery, false imprisonment, disability discrimination and breaches of Articles 3, 5 and 8 of the Convention. The central issues were whether the police had lawful statutory or common-law authority, whether reasonable adjustments were required, and whether the restraint violated the Convention.

1. Disposition. The claimant succeeded in assault and battery, false imprisonment, disability discrimination and his claims under Articles 3, 5 and 8. He was awarded £28,250 and was entitled to declaratory relief.
2. Mental Capacity Act. The police did not need to know the Act by name, but they had to hold the prescribed reasonable beliefs about the claimant’s lack of capacity, his best interests, the need to prevent harm and the proportionality of restraint. They also had to consider less restrictive alternatives and consult carers where practicable and appropriate.
3. The officers had ample opportunity to consult the carers before approaching the claimant and while he was in the pool. A calm assessment would probably have revealed that touching or approaching him was likely to cause him to enter the water. The police therefore failed to establish that the force used was in his best interests, necessary or proportionate.
4. The common-law defence of necessity had no application where the Mental Capacity Act 2005 applied. In any event, the facts did not establish an emergency requiring the force used.
5. Disability discrimination. The police practice of using physical restraint triggered the duty to make reasonable adjustments under the Disability Discrimination Act 1995. Reasonable adjustments included consulting carers, allowing communication with them, giving the claimant time to leave the pool, considering alternatives, using force only as a last resort and adopting a calm and patient approach. The justification defence failed.
6. Convention rights. The overall duration and circumstances of the restraint, together with the claimant’s age, autism, epilepsy and vulnerability, attained the minimum severity required for Article 3. The nature and duration of the restraint amounted to a deprivation of liberty under Article 5, even taking its protective purpose into account. The interference with private life under Article 8 was neither in accordance with domestic law nor proportionate.
7. The court awarded damages for post-traumatic stress disorder, exacerbation of epilepsy, injury to feelings, loss of liberty, and pain and distress. No separate damages were awarded under the Human Rights Act because domestic remedies provided just satisfaction.