Judge: Sir Robert Nelson
Citation:  EWHC 604 (Admin)
Summary: This is an extremely important case, primarily because of its consideration of the scope (and construction) of ss.5 and 6 MCA 2005, and also for its further contribution to the debate as to the circumstances under which a person can be said to be deprived of their liberty.
ZH was a severely autistic, epileptic nineteen year old young man who suffered from learning disabilities and could not communicate by speech. In September 2008, he was taken by the specialist school he attended to a swimming pool for a familiarisation visit. Matters went very badly awry during the course of that visit, in particular following the decision of the manager of the pool to ring the Police when difficulties were experienced in persuading ZH to move away from the side of the pool. The arrival of the police gave rise to an escalating series of events which culminated in ZH first jumping into the pool, being forcibly removed from it, being handcuffed, put in leg restraints and placed in a cage in the back of a police van for a period of around 40 minutes. As a result of this, ZH suffered consequential psychological trauma as and an exacerbation of his epileptic seizures.
ZH claimed (by his father as litigation friend) damages against the Commissioner of the Police for the Metropolis for damages, for assault and battery, false imprisonment, unlawful disability discrimination under the Disability Discrimination Act 1995, under the Human Rights Act 1998 alleging breaches of Articles 3, 5 and/or 8 of the ECHR and for declaratory relief.
The police contested the claim almost in its entirety. For our purposes, the most relevant aspects of the judgment are those dealing with claims for assault and battery, as well for false imprisonment/breach of Article 5 ECHR. Helpfully, Sir Robert Nelson analysed the legal framework in detail before then making findings of fact and considering questions of liability and quantum.
In considering the claims for assault and battery and false imprisonment, Sir Robert Nelson noted that it was accepted by the Commissioner that, once it was established that force was used upon ZH, or that he was imprisoned, the onus shifted to them to establish a lawful basis for the use of such force or imprisonment. Importantly, Sir Robert Nelson noted8 that “[t]o achieve this the Defendant has to demonstrate that his officers complied with the relevant provisions of the Mental Capacity Act.” Relying upon R (Sessay) v SLAM  EWHC 2617 (at paragraph 47) Sir Robert Nelson held (paragraph 34) that it was insufficient for the Commissioner to establish simply that an officer acted honestly and in good faith. Having set out the relevant provisions of the MCA 2005 (i.e. 1(5); 1(6), 4(2), 4(7), 5 and 6), which he considered to establish a number of pre-conditions which “if satisfied permit certain acts to be undertaken in respect of those lacking mental capacity, without legal liability being incurred,” (paragraph 35) Sir Robert Nelson considered the position of the officers in question, four of whom it was clear were not aware of s.5 MCA 2005 at the time that they acted and did not have it in mind. These officers said that they relied upon the common law power of necessity (paragraph 37). Having considered rival submissions as to whether or not knowledge of the provisions of the MCA 2005 is an essential pre-requisite to the operation of the Act, Sir Robert Nelson held as follows:
“40. Whilst it is correct that the officers have to have the prescribed state of mind at the material time under sections 5 and 6, it is not necessary in my judgment, for them to have in mind the specific sections, or indeed even the Act, at the material time. What they must reasonably believe at the material time are the facts which determine the applicability of the Mental Capacity Act. Thus, at the material time they need to believe that the claimant lacked capacity to deal with and make decisions about his safety at the swimming pool, that when they carried out the acts that they did, they believed that the claimant so lacked capacity, and that they believed that it was in the claimant’s best interests for them to act as they did. A belief that the situation created a need for them to act in order to protect the claimant’s safety and prevent him from severely injuring himself would in my judgment be sufficient to satisfy the Act, provided of course that the belief was reasonable under sections 5 and 6 and a proportionate response under section 6 of the Act. It is also necessary for the Police to have considered whether there might be a less restrictive way of dealing with the matter under section 1(6) and, if practicable and appropriate to consult the carers, to take into account their views. These are not only matters which they must have in mind when they carry out the acts of touching, grabbing or restraint but are matters which they must have had regard to before carrying out such acts.”
Sir Robert Nelson therefore found (paragraph 41) that it would therefore be theoretically possible for the police to have satisfied the conditions of ss.5-6 MCA 2005 even if some of their number were not aware of the terms of the Act itself. In light of his conclusion, he noted that he was not then bound to go on to consider whether or not the common law defence of necessity could apply in circumstances where the MCA 2005 applied. He chose to do so, however. Relying, in particular, on Sessay, ZH submitted that the defence of necessity had no place; the Commissioner submitted to the contrary. Sir Robert Nelson held as follows in this regard:
“44. For my part I am satisfied that where the provisions of the Mental Capacity Act apply, the common law defence of necessity has no application. The Mental Capacity Act requires not only the best interests test but also specific regard to whether there might be a less restrictive way of dealing with the matter before the act is done, and, an obligation, where practicable and appropriate to consult them, to take into account the views of the carers. It cannot have been the intention of Parliament that the defence of necessity could override the provisions of the Mental Capacity Act which is specifically designed to provide specific and express pre-conditions for those dealing with people who lack capacity.”
Having considered the law relating to the DDA 1995 and Article 3 ECHR, Sir Robert Nelson came on to consider Article 5. Perhaps unsurprisingly, in advancing the contention that ZH was not deprived of his liberty, the Commissioner placed heavy reliance upon the dicta from previous authorities suggesting that it was appropriate to take into account the purpose (or reason) for the restriction in question being imposed. Sir Robert Nelson noted that the decision of the Strasbourg Court in Austin was awaited; his conclusions in this regard must therefore be read subject to the fact that the decision has now been handed down, but are of sufficient interest as to merit being reproduced in full:
“63. It is right to say that there is no reference to ‘purpose’ in Article 5 save in relation to the specific exceptions (a) to (f). The cases however clearly establish that all relevant factors relating to the applicant have to be considered. If the applicant has a need for measures to be taken in order to protect his own safety, such a need should be taken into account otherwise the court is not considering the full circumstances relating to the applicant when the ambit of Article 5(1) is being considered. The court is not therefore considering the matter from the point of view of the person carrying out the measure, but from the point of view of the applicant who needs the measure to be carried out. This, it seems to me, is a similar approach to that adopted by Mrs Justice Parker [in MIG and MEG] when taking into account the “reasons” for the applicants before her living where they did.
64. There may be policy reasons why the ambit of Article 5 should only involve consideration of the actual effect upon the applicant, so that the scope of Article 5 is not unnecessarily diminished by “purpose” or “need”. The matter was not argued in depth before me however, and I am only able to express a tentative view on the basis of the material before me. On that material I conclude that the purpose of, or the need for a measure to be taken on the part of an applicant is one of the factors which should be taken into account in considering whether there has been an infringement of Article 5. It seems to me that if the consent of the applicant is relevant, which is not part of the concrete effect upon him, then need can also be said to be relevant.”
On the facts, Sir Robert Nelson found that ZH had made out all aspects of his claim (and also that, even had been available, the defence of necessity to the common law claims would not have been applicable at any of the stages of the police’s involvement). Interestingly, he found the police to have breached the DDA by failing to make a significant number of reasonable adjustments in their approach to him, such adjustments including consulting with his carers, allowing ZH opportunities to communicate with his carer during restraint and when in the van, giving ZH the opportunity to move away from the poolside at his own pace, recognising that force should have been the option of last resort, recognising that a calm, controlled and patient approach should have been taken at all times in their dealings with ZH, and considering any alternative strategies to that adopted. As Sir Robert Nelson noted at paragraph 139, “[t]he need for a calm assessment of the situation and the acquisition of knowledge of how to deal with the autistic young man before taking any precipitate action, was essential.”
As regards Article 5, Sir Robert Nelson’s conclusions were as follows:
“145. The nature and duration of the restraint lead me to the conclusion that there was a deprivation of liberty, not merely a restriction on movement on the facts of this case. Furthermore, even though I am of the view that the purpose and intention of the police (namely at least in part to protect ZH’s safety) is relevant to the consideration of the application of Article 5, I am nevertheless satisfied that even when that is taken into account, a deprivation of liberty has occurred. The actions of the police were in general well intentioned but they involved the application of forcible restraint for a significant period of time of an autistic epileptic young man when such restraint was in the circumstances hasty, ill-informed and damaging to ZH. I have found that the restraint was neither lawful nor justified. Even though the period may have been shorter than that in Gillan v United Kingdom 2010 APP No 4158/05, it was in my judgment sufficient in the circumstances to amount to a deprivation of liberty under Article 5.”
Sir Robert Nelson awarded the following damages to ZH (no award being made for aggravated or exemplary damages at common law or for the breaches of the ECHR):
Sir Robert Nelson also granted declaratory relief (the precise scope of which was not set out in the body of the judgment), concluding as follows:
“162. This case is another example of the difficult role the police are often called upon to play. None of them were fully aware of the features of autism, what problems it presented and how it should best be dealt with in a situation such as occurred at the Acton swimming baths. They were called to the scene by a misleading message about ZH’s behaviour, and on arrival perceived the need to take control and be seen to be taking steps to deal with the situation. What was called for was for one officer to take charge and inform herself of the situation, as fully as the circumstances permitted so as to be able to decide on the best course of action to take. That did not happen: their responses were over-hasty and ill-informed, and after ZH had gone into the pool matters escalated to the point where a wholly inappropriate restraint of an epileptic autistic boy took place. They did not consult properly with the carer who was present when they arrived, even if he was not as proactive as he might have been in informing them of what was happening, what needed to be done and what needed to be avoided.
163. The opportunities to take stock, before ZH went into the pool and whilst he was in it, were not taken. All of those involved in this incident were acting as they genuinely thought best, whether pool staff, carers or police, and it is clear to me, having listened to their evidence, that all have been to some extent emotionally affected by the events of that day. Whilst I am clear in my conclusion that the case against the police is established, I am equally clear in concluding that no one involved was at any time acting in an ill intentioned way towards a disabled person.
164. The case highlights the need for there to be an awareness of the disability of autism within the public services. It is to be hoped that this sad case will help bring that about.”
Comment: This case warranted setting out in some detail as (whilst not a COP case) it is the first in which ss.5-6 MCA 2005 have been subject to detailed judicial consideration. It is of particular significance that, whilst Sir Robert Nelson concluded that it is not necessary that a person have before them all relevant provisions of the Act (or, indeed, have knowledge of them), they must both reasonably believe the facts which determine the applicability of ss.5-6 and also – importantly – have considered all the relevant matters which the Act prescribes. It is respectfully suggested that this approach must be correct as it focuses upon the substantive protections afforded to P by the MCA 2005 so as to ensure that steps are taken in his best interests, whilst at the same time enabling those who are in fact taking those steps not to be affixed with legal liability on ‘procedural’ grounds.
Sir Robert Nelson’s conclusions as to the vexed question of purpose/reason must now be read in light of the decision in Austin, but to the extent that they address themselves to the actual needs of P (rather than the views of the restrainer of those needs) they are consistent with that decision.
As the judge noted, the case is also an object lesson in how quickly situations can escalate if well-intentioned but uninformed (even if uniformed) individuals seek to intervene without taking the necessary steps to appraise themselves of the particular needs of the particular individual at the particular time. It also stands, we might note, as a rather interesting counterpoint to Crawford & Anor v Suffolk Mental Health Partnership NHS Trust  EWCA Civ 138 (discussed in our March newsletter) and the (one might possibly think rather cavalier) approach taken there to the restraint of the challenging.