H v Commissioner of Police of the Metropolis

The Court of Appeal dismissed the police appeal against findings that officers were liable in tort and in breach of the Mental Capacity Act 2005 (sections 4, 5 and 6) and the Disability Discrimination Act 1995 (section 21E duty to make reasonable adjustments). The judge’s central factual findings were upheld: on arrival the officers reasonably believed ZH lacked capacity but did not take reasonably practicable steps to consult his carers; their touching and subsequent lifting and restraint were not shown to be necessary or proportionate; the restraint and detention amounted to assault, battery and false imprisonment; and the failure to adapt usual control and restraint practices to ZH’s disabilities breached the DDA. The court also upheld findings that the treatment met the threshold for inhuman or degrading treatment under Article 3 and that there was a deprivation of liberty under Article 5, with a consequential unjustified interference with Article 8.

Background and parties: ZH, a 16 year-old severely autistic and epileptic non‑verbal young man, was taken on a school visit to a swimming pool and became fixated at the poolside. Metropolitan police officers intervened, touched him, and he entered the pool. He was removed, forcibly restrained by several officers, handcuffed, placed in a police van and detained for about 40 minutes. ZH suffered post‑traumatic stress disorder and an exacerbation of epilepsy. Sir Robert Nelson at Central London County Court found for ZH and awarded damages of £28,250. The Commissioner of Police appealed to the Court of Appeal.

Nature of claim / relief sought: Tort claims for assault and battery and false imprisonment; a claim under the Disability Discrimination Act 1995 for failure to make reasonable adjustments to police control and restraint procedures; and claims of breaches of Articles 3, 5 and 8 of the European Convention on Human Rights. The defendant sought to rely on the Mental Capacity Act 2005 defence for acts done in the best interests of a person lacking capacity (sections 4, 5, and 6).

Issues framed:

• Whether the police had taken reasonable steps to ascertain ZH’s capacity and whether the officers reasonably believed their acts were in his best interests under the Mental Capacity Act 2005, including the necessity and proportionality requirements for restraint under section 6;
• Whether the police had failed to make reasonable adjustments to their usual control and restraint practices contrary to the Disability Discrimination Act 1995 (section 21E duty and section 21D discrimination);
• Whether the treatment and detention breached Articles 3, 5 and 8 of the European Convention on Human Rights.

Court’s reasoning and conclusions: The Court of Appeal endorsed the trial judge’s detailed factual findings after hearing extensive live evidence and rejected the appellant’s submissions that the judge failed to respect operational policing discretion or impermissibly relied on hindsight. The appellate court held that: (i) the officers did reasonably believe ZH lacked capacity but, contrary to section 4(7) of the MCA, they failed to take reasonably practicable steps to consult carers when it was practicable and appropriate to do so; (ii) the initial touching and the subsequent lifting and restraint were not shown to be necessary or proportionate for preventing harm such as would engage the section 5/6 defence; (iii) the duty to make reasonable adjustments under the DDA was engaged and the police failed to discharge it (the duty is fact‑sensitive and continuing); and (iv) the cumulative facts (vulnerability, duration and manner of restraint, wet and distressed state, handcuffs and leg restraints, isolation in the van, adverse health consequences) met the minimum severity for a breach of Article 3 and amounted to a deprivation of liberty under Article 5, with an unjustified interference with Article 8. The appeal was dismissed.

The appeal was dismissed. The Court of Appeal upheld the trial judge’s findings that the officers, though believing ZH lacked capacity, failed to take reasonably practicable steps to consult carers and did not reasonably believe that their touching, lifting and restraint were in ZH’s best interests or were necessary and proportionate under sections 5 and 6 of the Mental Capacity Act 2005. The court also upheld findings that the police had breached their duty to make reasonable adjustments under the Disability Discrimination Act 1995 and that ZH’s treatment and detention breached Articles 3 and 5 (with consequential interference with Article 8). The factual findings and proportionality assessments were held to be open to the trial judge and not vitiated by impermissible hindsight.

Appeal to the Court of Appeal (Civil Division) from a decision of the Central London County Court (Sir Robert Nelson, 9CL02483). The Court of Appeal delivered judgment in Commissioner of Police for the Metropolis v ZH [2013] EWCA Civ 69 (14 February 2013), dismissing the appeal and upholding the trial judge’s decision and award of £28,250.