Commissioner of Police for the Metropolis v ZH

Police acting in connection with the care of a person lacking capacity avoid tortious liability only where the statutory requirements of reasonable belief, best interests, necessity and proportionality are satisfied. Whether consultation with a carer is practicable and appropriate depends on all the circumstances, including whether officers reasonably perceive an emergency.

The duty to make reasonable adjustments for a disabled person is continuing and fact-sensitive. Operational discretion does not confer immunity. Restraint of a particularly vulnerable person may violate articles 3, 5 and 8 where its intensity, duration, effects and manner of implementation cross the relevant thresholds, even without any intention to humiliate.

ZH was a severely autistic and epileptic 16-year-old who could not communicate by speech. Police officers attending a swimming pool approached and touched him without adequately consulting his carers. After he entered the water, officers helped remove him, restrained him with handcuffs and leg restraints, and detained him in a police van. The incident caused acute psychological suffering, post-traumatic stress disorder and an exacerbation of his epilepsy.

Sir Robert Nelson, sitting in the Central London County Court, found the police liable in assault, battery and false imprisonment. He also found unlawful disability discrimination and breaches of articles 3, 5 and 8 of the European Convention on Human Rights. He awarded £28,250 in damages.

The Commissioner appealed on liability. The principal issues concerned the statutory defence under the Mental Capacity Act 2005, the duty to make reasonable adjustments under the Disability Discrimination Act 1995, and the Convention thresholds governing ill-treatment, deprivation of liberty and private life.

1. Appeal dismissed. The trial judge was entitled to uphold the claims in tort, disability discrimination and under articles 3, 5 and 8 of the European Convention on Human Rights. The Master of the Rolls gave the judgment, with which Richards and Black LJJ agreed.

2. The protection afforded by sections 5 and 6 of the Mental Capacity Act 2005 depended on reasonable beliefs concerning incapacity, best interests and the necessity of restraint. Restraint also had to be a proportionate response to the likelihood and seriousness of harm. The statutory scheme was governed by reasonableness, practicability and appropriateness rather than strict liability.

   The judge could find that no emergency required immediate action and that the officers did not themselves consider the risk sufficiently imminent to preclude consultation. Consultation with the carer was practicable and appropriate. The failure to consult undermined any reasonable belief that approaching, touching and later restraining ZH was in his best interests. The findings that the restraint was neither reasonably believed necessary nor proportionate were unimpeachable.

3. The duty under the Disability Discrimination Act 1995 to adjust the police control and restraint policy was continuing. Its content depended on the circumstances. The officers were not required to make a medical diagnosis, but they knew before the restraint that ZH was autistic and epileptic. The judge could find that reasonable adjustment required consultation with his carers and a calm, informed approach.

4. For article 3, severity depended on all the circumstances, including duration, effects, age, health and vulnerability. An intention to humiliate was relevant but not essential. The judge could find that the prolonged and intensely distressing restraint of a highly vulnerable child crossed the minimum threshold.

5. For article 5, deprivation of liberty was assessed by reference to the concrete situation, including the measure's type, duration, effects and manner of implementation. Detention closely analogous to confinement in a police cell may amount to deprivation even when brief. The intense restraint and detention in the caged rear of the van for about 40 minutes constituted a deprivation of liberty. No permitted justification under article 5(1)(a)–(f) applied.

6. The unsuccessful challenges under articles 3 and 5 also disposed of the challenge under article 8. Operational discretion remained important but could not immunise police conduct from liability.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld every finding on liability made below.
2. Central London County Court: Sir Robert Nelson found assault, battery and false imprisonment, unlawful disability discrimination, and breaches of articles 3, 5 and 8 of the European Convention on Human Rights. He awarded £28,250 in damages.