ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
SIR ROBERT NELSON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LADY JUSTICE BLACK
| The Commissioner of Police for the Metropolis
- and -
|ZH (A protected party, by GH, his litigation friend)
- and -
|Equality and Human Rights Commission
Ms Heather Williams QC (instructed by Bhatt Murphy) for the Respondent
Ms Karon Monaghan QC (instructed by Liberty) for the First Intervener
Mr Jason Coppel (instructed by The Equality and Human Rights Commission) for the Second Intervener
Hearing dates: 22 & 23 January 2013
Crown Copyright ©
Master of the Rolls:
ZH's entry into the pool
The time when ZH was in the water
Restraint following the removal of ZH from the pool
Restraint in the police van
"4 (1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of–
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider–
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable–
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.
(7) He must take into account, if it is practicable and appropriate to consult them, the views of–
(a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b) anyone engaged in caring for the person or interested in his welfare,
(c) any donee of a lasting power of attorney granted by the person, and
(d) any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which–
(a) are exercisable under a lasting power of attorney, or
(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
(9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(11) "Relevant circumstances" are those–
(a) of which the person making the determination is aware, and
(b) which it would be reasonable to regard as relevant."
"5. (1) If a person ("D") does an act in connection with the care or treatment of another person ("P"), the act is one to which this section applies if–
(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and
(b) when doing the act, D reasonably believes–
(i) that P lacks capacity in relation to the matter, and
(ii) that it will be in P's best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not have incurred if P–
(a) had had capacity to consent in relation to the matter, and
(b) had consented to D's doing the act."
"6. (1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.
(2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.
(3) The second is that the act is a proportionate response to–
(a) the likelihood of P's suffering harm, and
(b) the seriousness of that harm.
(4) For the purposes of this section D restrains P if he–
(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P's liberty of movement, whether or not P resists.
(5) But D does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention (whether or not D is a public authority)."
The judge's decision on liability in relation to the MCA issues
"119……[The officers'] task was without doubt a difficult one; they arrived at the pool in the expectation from the message that they had received that they were to be faced with an aggressive disabled male; they were in fact faced with a disabled young man looking as if he might enter the pool fully clothed at any moment with no carer apparently taking control of the situation. But these first impressions were not in fact true. ZH was not and had not at any stage been aggressive before he went into the pool; he had been present beside the pool for some 40 minutes without jumping in and had become "stuck" there as can occur in the case of autistic children; the carer was several feet away for a reason, namely to ensure that ZH was not crowded into jumping into the pool.
120. What was needed from the police on their arrival was a calm assessment of the situation so as to ensure that they were as fully informed as the circumstances permitted before taking action. Had they been so informed, as they could have been by speaking to Mr Badugu, they would have learned that they must not touch ZH or go right up to him as these actions would be the most likely to bring about that which they sought to avoid, namely ZH jumping into the pool."
"77. PC McKelvie said that she did not see the carers, and clearly also felt that the police had to take control of the situation. When giving evidence she said in cross- examination that when police were called they had to be seen to be doing something. Having heard the evidence I am quite satisfied that it was this belief of PC Colley and PC McKelvie, that no-one was taking control and that the police had to do so, and be seen to be doing so, which was the catalyst for them moving towards ZH and acting as they did. I fully accept that both PC Colley and PC McKelvie genuinely believed that ZH was in potential danger but I do not accept that they considered the risk of him jumping in to be so imminent, and such an emergency, that they had to act, in PC McKelvie's case before speaking to the carer, and in PC Colley's case before seeking to obtain fuller information from him. It was the need for the police to take control of the situation and be seen to be doing so which was uppermost in their minds."
"122. I am entirely satisfied that both PC McKelvie and PC Colley considered that ZH was in potential danger and that they were, in part, acting to protect him. I am not however satisfied that any belief that there was an emergency which required them to act before consulting the carers was a reasonable belief. PC Colley considered that no-one was taking control of the situation and PC McKelvie said that once called the officers had to be seen to being doing something. There is no evidence to suggest that ZH was any more likely to jump into the pool at that moment than he had been for the previous 40 minutes until he was approached and touched by PC McKelvie. It was that action which caused the emergency which PC McKelvie and PC Colley then tried to prevent by grabbing him to stop him from entering the pool. A calm discussion with Mr Badugu would have informed them of the particular problems relating to autistic children, that to touch him or go right up to him were strongly inadvisable and help from qualified school staff was on its way."
"128. Once the police were locked into the physical removal of ZH from the pool carrying with it the probability of struggle and restraint the options available to them were limited. Even then however they could have stepped back, one by one, to give the carers the opportunity to calm him and help him. The carers were making it clear that the degree of force being used was wholly wrong and had consultation with the carers taken place either before he went into the pool or whilst he was in the pool, the police would have discovered that such forcible physical restraint would have been potentially damaging to him given his condition of autism and epilepsy.
129. I am not satisfied on the evidence that the police believed at this stage that the restraint was for the benefit of ZH. They were simply caught up in a process which they had started, continued to be involved in and felt unable to stop or control. In any event even if the police believed it was in ZH's best interests to be out of the water; and not able to return to it, thereby requiring or justifying the use of forcible restraint as Miss Studd submits, it cannot have been a reasonable belief that that level of force was in ZH's best interests. The dangers he faced of escape and re-entering the pool were not, given the number of lifeguards and carers present, severe, compared with the risk of injury by such forcible restraint to an autistic and epileptic young man; the risk of restraint causing stress is admitted by the Defence, but the police should have known of the risks of such restraint to an epileptic from immediate seizure, even if not from exacerbation of an existing condition of epilepsy. Nor were the actions of the police proportionate in the circumstances, given that as an alternative to such restraint ZH could have been permitted to leave the pool by himself from the shallow end or when on the poolside have been immediately released for his carers to deal with."
The challenge to the judge's findings on the MCA issues
ZH's entry into the pool
"70. ZH had in fact been standing by the pool for at least 40 minutes between 14.50 and 15.30 hours when the police arrived. It is probable that Mr Hartland told PC McKelvie in his conversation with her, as he says he did, that ZH had been standing there for a significant period of time. There remained the risk that he would jump into the water at any given time, but his presence and demeanour by the pool did not in itself suggest that he was going to do so imminently at that particular time, any more than he had been in the last 40 minutes. Had Mr Badugu been consulted he would have been able to inform the police that it is not uncommon for an autistic person to become "stuck" in one place for a considerable period of time. That is no doubt why Mr Badugu had told Mr Hartland that "the boy needed time"."
71. The officers could also see that there were several lifeguards nearby looking after ZH's safety, should he have gone into the pool. He was well within his depth at the point where he was standing.
72. Mr Badugu was standing in the corridor within sight and sound of ZH. PC Colley was able to speak to Mr Badugu and there is no reason why PC McKelvie should not have done so as well, whilst at the same time, as PC Colley did, maintaining an eye on ZH."
When ZH was in the water
Events after ZH was lifted out of the pool
The legal framework
"21D Meaning of "discrimination" in section 21B
(1) For the purposes of section 21B(1), a public authority discriminates against a disabled person if—
(2) For the purposes of section 21B(1), a public authority also discriminates against a disabled person if--
(a) it fails to comply with a duty imposed on it by section 21E in circumstances in which the effect of that failure is to make it--
(ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected,
by the carrying-out of a function by the authority; and
(b) it cannot show that its failure to comply with that duty is justified under subsection (3), (5) or (7)(c).
(3) Treatment, or a failure to comply with a duty, is justified under this subsection if --
(a) in the opinion of the public authority, one or more of the conditions specified in subsection (4) are satisfied; and
(b) it is reasonable, in all the circumstances of the case, for it to hold that opinion.
(4) The conditions are –
(a) that the treatment, or non-conmpliance with the duty, is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person);
(5) Treatment, or failure to comply with a duty, is justified under this subsection if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim.
21E Duties for purposes of section 21D(2) to make adjustments
(1) Subsection (2) applies where a public authority has a practice, policy or procedure which makes it--
(a) impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred, or
(b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected,
by the carrying-out of a function by the authority.
(2) It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect."
ZH's pleaded DDA claim
"(i) Identifying, or at least taking reasonable steps to try and identify, with the Claimant's carers the best means of communicating with the Claimant before attempting to do so and as the situation developed, then adjusting their usual means of communication accordingly;
(ii) Identifying, or at least taking reasonable steps to try and identify, with the Claimant's carers before approaching him, a plan to best address the situation and then taking reasonable steps to implement that plan;
(iii) Allowing the Claimant opportunities to communicate with his carers and receive reassurance from them, in particular when he had just come out of the pool and when he was shut alone in the police van;
(iv) At the outset, allowing the Claimant an opportunity to move away from the poolside at his own pace. He had not entered the water despite standing unrestrained near the edge for at least 30 minutes prior to the officers' attendance. Following their arrival and excessive intervention he jumped into the water within minutes;
(v) Recognising that in the circumstances use of any force on the Claimant was an option of very last resort only to be deployed if all other options had been tried and failed and only then at the minimum level possible and in circumstances that were not unduly oppressive for the Claimant;
(vi) Seeking, listening to and responding to advice from the Claimant's carers as the situation developed and keeping their approach to it under careful review, for example after it became readily apparent that using force on the Claimant only served to frighten and distress him and escalate the situation further;
(vii) Adopting alternative strategies to afford protection for the Claimant's safety (if and in so far as there was any risk to the same, which is not accepted), for example by the officers present forming a cordon to prevent him from re-entering the pool;
(viii)Prioritising the adoption of a calm, controlled and patient approach at all times in their dealings with the Claimant."
The judge's decision
"The duty to consult the carers arose from the outset, and the duty to make reasonable adjustments was a continuing obligation throughout. In any event, as I have found, the police did decide, by means of a very brief discussion, to lift ZH from the water to the poolside leading as was entirely foreseeable, to virtually immediate restraint."
"a proactive duty on police officers to consider in advance what practices or procedures may be required and adopt a modification to them in what has been described by the court as a fast moving situation. Such a finding in relation to spontaneous policing decisions is unworkable in practice and wrong in principle."
Conclusion on the DDA issues
THE CONVENTION ISSUES
"144. When the duration of the force and restraint, injury sustained, and age, health and vulnerability of ZH are taken into account I am satisfied that there has been a breach of Article 3. The minimum level of severity has been attained when the whole period of restraint is taken into account. It is not just the application of handcuffs and leg restraints which has to be considered but the whole time when restraint on the poolside and in the van occurred which has to be considered. It is clear that there was no intended humiliation in this case as there was in Archip but nevertheless the treatment of ZH amounts to inhuman or degrading treatment."
"24. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.
In considering whether treatment is "degrading" within the meaning of Article 3, one of the factors which the Court will take into account is the question whether its object was to humiliate and debase the person concerned, although the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3."
"39. At the heart of this case is the applicant's severe mental illness at the time in question. As the Court has stated in its case law under this provision of the Convention, the mentally ill are in a position of particular vulnerability, and clear issues of respect for their fundamental human dignity arise whenever such persons are detained by the authorities. The issue is whether the authorities fulfilled their obligation to protect the applicant from treatment contrary to art.3."
"29. Moreover, where the authorities decide to detain a person with disabilities, they should demonstrate special care in guaranteeing such conditions as correspond to the person's individual needs resulting from his disability (see mutandis Jasinskis v. Latvia, no. 45744/08, §59, 21 December 2010; Price v. the United Kingdom, op.cit., § 30). States have an obligation to take particular measures which provide effective protection of vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, §73, ECHR 2001-V). Any interference with the rights of persons belonging to particularly vulnerable groups – such as those with mental disorders – is required to be subject to strict scrutiny, and only very weighty reasons could justify any restriction (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010)."
"in particular that the inevitable feeling of isolation and helplessness flowing from the applicant's disabilities, coupled with the presumable lack of comprehension of his own situation and of that of the prison order, must have caused the applicant to experience anguish and inferiority attaining the threshold of inhuman and degrading treatment, especially in the face of the fact that he had been severed from the only person (his mother) with whom he could effectively communicate".
"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."
"92. The Court recalls that in proclaiming the 'right to liberty' paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 which has not been ratified by Italy. In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.
93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends."
"The court observes that although the length of time during which each applicant was stopped and search (sic) did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of art 5(1)."
"However, the Court is of the view that the requirement to take account of the "type" and "manner of implementation" of the measure in question enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good. As the judges in the Court of Appeal and House of Lords observed, members of the public generally accept that temporary restrictions may be placed on their freedom of movement in certain contexts, such as travel by public transport or on the motorway, or attendance at a football match. The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as "deprivations of liberty" within the meaning of art.5(1)."
Lord Justice Richards:
Lady Justice Black: