ZH v Commissioner of Police for the Metropolis  EWHC 604 (QB) - read judgment
The Mental Capacity Act 2005 (MCA) was long awaited; it took nearly two decades for the Law Commission’s proposals for codification of the common law on mental capacity to make their way onto the statute books. The MCA is generally considered to be quite progressive and I often hear it described as ‘empowering’ and granting people ‘rights to autonomy’.
I can see why this is said, but it actually belies an important aspect of the unique way in which the Act functions. Rather than granting ‘claim rights’ to autonomy, the MCA in fact sets out those circumstances when a person’s ordinary rights to self-determination may be infringed (see ss1-6 MCA). It does this by supplying a ‘general defence’ for those whose actions might trespass upon or violate a person’s ordinary legal rights.
This case indicates that the MCA has come of age in one important area of equality and human rights: restraint of disabled people by the police.
ZH was a young man with autism and learning disabilities, who could not communicate by speech. On a school trip to a swimming pool, ZH had been attracted to the edge of the poolside and was fixated by the appearance of the water.
Unusual sensory processing is a feature of autism, and sensory fixations are sometimes described as a person getting ‘stuck’. Writers in the Autism Rights community have given first hand descriptions of ‘stimming’, and their descriptions place it as somewhere between pleasure and a necessary way of making sense of the world around them.
Attempts to distract ZH with food and drink failed, and his care assistants were concerned that attempts to touch him and guide him away might prompt him to jump in, fully dressed, when he could not swim.The pool manager threatened to call the police to have ZH removed from the poolside, despite ZH’s carer pointing out that ‘he was not hurting himself or being dangerous to anyone around’ . When the police arrived, one policeman spoke to ZH’s carer in a corridor whilst another approached ZH and touched him on the back then moved to grab his jacket. As his carer had earlier feared, ZH jumped into the water. In the pool, the water came up to ZH’s chest, and witnesses testified he appeared to be enjoying himself. The lifeguards initially formed a cordon to prevent him moving into the deeper water, but then proceeded to grab ZH with a member of the public and move him to the shallow end. During the time ZH was in the water, the police did not consult further with his carers; nor did the police reinforcements that later arrived. Efforts to forcibly remove ZH from the pool resulted in him slipping and landing on his back. Five officers applied force to his body as he struggled, allegedly attempted to bite a police officer, and tried to get back into the pool. His carers remonstrated with the police that ZH was autistic and epileptic, and tried to calm him down. ZH was put in handcuffs and leg restraints and placed in a police van, soaking wet. A carer was able to calm ZH down, and he was released by the police. The police held a ‘hot debrief’ with the carers, who the police felt had been ineffectual. The carers, for their part, felt that ‘the police had over-reacted and used unnecessary restraint where time and patience would have been sufficient’ . As a consequence of the episode, psychiatrists gave evidence that ZH had suffered psychological trauma, which had also increased the frequency of his epileptic seizures.
ZH, by his father GH as his litigation friend, brought claims against the police. The claim included trespasses against the person – assault, battery and false imprisonment; failing to make reasonable adjustments for ZH’s disability as required by s21 Disability Discrimination Act 1995 (DDA); and violations of his human rights under Articles 3, 5 and 8 European Convention on Human Rights (ECHR). The court held that the trespass charges were subject to the general defence for restraint provided by the MCA, which makes several procedural and substantive requirements of defendants:
- The act of restraint must be in the person’s best interests (s4 MCA), and this is to be determined in part through consultation with those involved in his care and welfare wherever reasonably practicable;
- Regard must be had to the least restrictive course of action (s1(5) MCA);
- Any acts of restraint must be necessary and proportionate to the risk of harm that would be suffered otherwise (s6 MCA).
The MCA consequently dictates a much more rigorous canvassing of alternative options than the common law doctrine of necessity might have prescribed, and it is much more sensitive to the needs of the individual and their disability. The police testified that although they had heard of the MCA, they had relied upon the common law of necessity. Although there have been cases where the MCA has not been found to displace the common law (A & C v A Local Authority , , , ), in this case the judge ruled:
I am satisfied that where the provisions of the Mental Capacity Act apply, the common law defence of necessity has no application… 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. 
The court found that the police had failed to establish that they reasonably believed it was in ZH’s best interests to remove him from the pool in the way that they did. In part this related to their failure to consult those who knew him best, and in part it related to their failure to attempt less restrictive alternatives. Consequently, their actions constituted assault, battery and false imprisonment. Furthermore, they had failed to make reasonable adjustments for ZH’s autism, and the court found a violation of s21 DDA. Having taken into account ‘the duration of the force and restraint, injury sustained, and age, health and vulnerability of ZH’ , the court found the police’s actions constituted inhuman and degrading treatment, meeting the threshold of Article 3 ECHR. Violations of ZH’s Article 5 and 8 rights were also found.
The court awarded damages of £28,250 and concluded that ‘The case highlights the need for there to be an awareness of the disability of autism within the public services’ . Many in the disability rights world would agree with this comment; it is also to be hoped that the case promotes greater awareness of the carefully constructed provisions of the MCA as well.
Lucy Series is researching mental capacity and human rights in community care settings for her doctoral thesis in law. She writes a blog at The Small Places.
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