ZH (A PROTECTED PARTY BY GH, HIS LITIGATION FRIEND) AND THE COMMISSIONER OF POLICE FOR THE METROPOLIS [2012] EWHC 604 (Admin)
FACTS:-The Claimant was a severely autistic and epileptic nineteen year old, who suffered from learning difficulties and could not communication by speech. He brought a claim for assault and battery, false imprisonment, unlawful disability discrimination under the Disability Discrimination Act 1995 (DDA) and breaches of Articles 3, 5 and/or 8 under the Human Rights Act 1998 and for declaratory relief.
In September 2008, the Claimant was at a swimming baths, with a group although they were not swimming. He became fixated by the water and could not be encouraged to move away. His teacher went back to his nearby school to fetch help. His carer told pool staff not to touch him, otherwise he would jump in. The manager at the pool decided to call the police, telling them that the Claimant was aggressive. When the police arrived, the carer explained that the Claimant was disabled, but they approached him and he jumped into the water. Fortunately it was only at chest height. The lifeguards then entered the water and grabbed the Claimant. He was then moved into the shallow end of the pool and lifted out, struggling. Leg restraints and handcuffs were applied and the Claimant was put into a police van. These were later removed.
The Claimant suffered psychological trauma as a result of the experience, and exacerbation of his epileptic seizures.
JUDGEMENT:-Sir Robert Nelson said that the claims for assault and battery were subject to the Mental Capacity Act 2005. Once force was used upon the Claimant, or he was imprisoned, the burden was on the Defendant to establish a lawful basis for the use of such force or imprisonment. To achieve this, the Defendant had to demonstrate that the officers complied with the relevant provisions of the Mental Capacity Act.
Sir Robert went over the relevant provisions of the 2005 Act. Two of the police officers in question were aware of the Act, but the others were not. In his view, it was not necessary for them to have in mind the specific sections, or even the Act at the material time. Thus at the material time, they needed to believe that the Claimant lacked capacity to deal with and make decisions about his safety at the 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 the belief was reasonable under Sections 5 and 6, and a proportionate response under Section 6 of the Act. It was also necessary for the police to have considered a less restrictive way of dealing with the matter under Section 1(6), and to consult the carers if practicable.
Sir Robert then considered whether the common law defence of necessity would apply when the Mental Capacity Act 2005 was applicable. In his view it did not. It could not have been the intention of Parliament for that defence to override the statutory provisions.
Sir Robert considered the Disability Discrimination Act 1995. This provided that it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions. Sir Robert had given permission for the Defendant to rely on the defence of justification contained in the Act. The essence of this defence was that the actions, as they stood, were necessary in order not to endanger the health or safety of any person including the disabled person. The acts of the public authority had to be a proportionate means of achieving a legitimate aim.
There was then the Human Rights Act claims. Article 3 prohibited inhuman or degrading treatment, Article 5, the right to liberty, and Article 8 the right to respect for private life.
Sir Robert would bear in mind the fact that the police were faced with a fast moving situation. The first issue was whether the police were faced with an emergency on their arrival at the pool, which prevented them from obtaining advice from the Claimant’s carer before the Claimant entered the water. Sir Robert said that he was satisfied that if the police had taken the opportunity to speak to the carer, that carer would have informed them that the Claimant was autistic, that he had become “stuck” and that he would jump in the water if touched.
The next issue was the immediate cause of the Claimant entering the water. Sir Robert that this was the result of the police action in approaching and touching the Claimant.
There was then the issue of the level of danger, the Claimant was in whilst he was in the water. Clearly he was in danger, but the lifeguards present that danger diminished significantly.
What was the Claimant’s behaviour in the pool? Sir Robert was satisfied that the Claimant was not being aggressive when he was trying to escape from the lifeguards.
Sir Robert then considered what opportunity there was for the police to seek advice or information from the carers whilst the Claimant was in the water. There was (in his view) ample opportunity for the police to consult the carers, and the opportunity to ascertain, by speaking to the carers whilst the Claimant was in the pool, the best and safest way of removing him was not taken.
The Claimant had not been encouraged to emerge from the pool of his own volition before he was lifted out. If there had been any opportunity to do this, it was brief and limited. In addition, Sir Robert said that there had been the opportunity for the Claimant to be released by the lifeguards in the shallow end so that he could stand comfortably and safely in the vicinity of the steps.
There were then the options available to the police after the Claimant had been removed from the pool. Had the Claimant been released by the police, there was a risk he could have gone back into the pool, but on the other hand had the police acted correctly earlier on, this risk would never have arisen.
Sir Robert was satisfied that the Defence had failed to satisfy the preconditions under the Mental Capacity Act 2005. He considered each potential trespass to the person in stages, and said that the defence on each one was not made out. There was also a false imprisonment.
In relation to the Disability Discrimination Act 1995, there had been a breach and the police had failed to established the defence of justification.
There had also been a breach of Article 3, Article 5 and Article 8 of the European Convention on Human Rights.
Sir Robert did comment that one of the school’s staff might have done more to explain to the police the nature of the Claimant’s condition, and one of the pool staff should not have described the Claimant’s behaviour as aggressive. However this did not exculpate the police.
In relation to quantum, the psychiatrist agreed that the Claimant (if his father’s account was correct) had suffered post traumatic stress disorder of moderate severity with a fair prognosis over time. Sir Robert would award £10,000. There had also been a temporary exacerbation of the Claimant’s epilepsy. Sir Robert said that the exacerbation period was two years, and so damages under this head would be awarded at £12,500. £5,000 would be awarded for damages pursuant to the Disability Discrimination Act, £500 for the common law damages for loss of liberty and £250 for the assault. There was no case for aggravated or exemplary damages. The remedies obtained in the litigation under domestic law have afforded just satisfaction and consequently there was no need to make any damages awarded under Section 8 of the Human Rights Act 1998. Total damages would be £28,250.
FACTS:-The Claimant was a severely autistic and epileptic nineteen year old, who suffered from learning difficulties and could not communication by speech. He brought a claim for assault and battery, false imprisonment, unlawful disability discrimination under the Disability Discrimination Act 1995 (DDA) and breaches of Articles 3, 5 and/or 8 under the Human Rights Act 1998 and for declaratory relief.
In September 2008, the Claimant was at a swimming baths, with a group although they were not swimming. He became fixated by the water and could not be encouraged to move away. His teacher went back to his nearby school to fetch help. His carer told pool staff not to touch him, otherwise he would jump in. The manager at the pool decided to call the police, telling them that the Claimant was aggressive. When the police arrived, the carer explained that the Claimant was disabled, but they approached him and he jumped into the water. Fortunately it was only at chest height. The lifeguards then entered the water and grabbed the Claimant. He was then moved into the shallow end of the pool and lifted out, struggling. Leg restraints and handcuffs were applied and the Claimant was put into a police van. These were later removed.
The Claimant suffered psychological trauma as a result of the experience, and exacerbation of his epileptic seizures.
JUDGEMENT:-Sir Robert Nelson said that the claims for assault and battery were subject to the Mental Capacity Act 2005. Once force was used upon the Claimant, or he was imprisoned, the burden was on the Defendant to establish a lawful basis for the use of such force or imprisonment. To achieve this, the Defendant had to demonstrate that the officers complied with the relevant provisions of the Mental Capacity Act.
Sir Robert went over the relevant provisions of the 2005 Act. Two of the police officers in question were aware of the Act, but the others were not. In his view, it was not necessary for them to have in mind the specific sections, or even the Act at the material time. Thus at the material time, they needed to believe that the Claimant lacked capacity to deal with and make decisions about his safety at the 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 the belief was reasonable under Sections 5 and 6, and a proportionate response under Section 6 of the Act. It was also necessary for the police to have considered a less restrictive way of dealing with the matter under Section 1(6), and to consult the carers if practicable.
Sir Robert then considered whether the common law defence of necessity would apply when the Mental Capacity Act 2005 was applicable. In his view it did not. It could not have been the intention of Parliament for that defence to override the statutory provisions.
Sir Robert considered the Disability Discrimination Act 1995. This provided that it was unlawful for a public authority to discriminate against a disabled person in carrying out its functions. Sir Robert had given permission for the Defendant to rely on the defence of justification contained in the Act. The essence of this defence was that the actions, as they stood, were necessary in order not to endanger the health or safety of any person including the disabled person. The acts of the public authority had to be a proportionate means of achieving a legitimate aim.
There was then the Human Rights Act claims. Article 3 prohibited inhuman or degrading treatment, Article 5, the right to liberty, and Article 8 the right to respect for private life.
Sir Robert would bear in mind the fact that the police were faced with a fast moving situation. The first issue was whether the police were faced with an emergency on their arrival at the pool, which prevented them from obtaining advice from the Claimant’s carer before the Claimant entered the water. Sir Robert said that he was satisfied that if the police had taken the opportunity to speak to the carer, that carer would have informed them that the Claimant was autistic, that he had become “stuck” and that he would jump in the water if touched.
The next issue was the immediate cause of the Claimant entering the water. Sir Robert that this was the result of the police action in approaching and touching the Claimant.
There was then the issue of the level of danger, the Claimant was in whilst he was in the water. Clearly he was in danger, but the lifeguards present that danger diminished significantly.
What was the Claimant’s behaviour in the pool? Sir Robert was satisfied that the Claimant was not being aggressive when he was trying to escape from the lifeguards.
Sir Robert then considered what opportunity there was for the police to seek advice or information from the carers whilst the Claimant was in the water. There was (in his view) ample opportunity for the police to consult the carers, and the opportunity to ascertain, by speaking to the carers whilst the Claimant was in the pool, the best and safest way of removing him was not taken.
The Claimant had not been encouraged to emerge from the pool of his own volition before he was lifted out. If there had been any opportunity to do this, it was brief and limited. In addition, Sir Robert said that there had been the opportunity for the Claimant to be released by the lifeguards in the shallow end so that he could stand comfortably and safely in the vicinity of the steps.
There were then the options available to the police after the Claimant had been removed from the pool. Had the Claimant been released by the police, there was a risk he could have gone back into the pool, but on the other hand had the police acted correctly earlier on, this risk would never have arisen.
Sir Robert was satisfied that the Defence had failed to satisfy the preconditions under the Mental Capacity Act 2005. He considered each potential trespass to the person in stages, and said that the defence on each one was not made out. There was also a false imprisonment.
In relation to the Disability Discrimination Act 1995, there had been a breach and the police had failed to established the defence of justification.
There had also been a breach of Article 3, Article 5 and Article 8 of the European Convention on Human Rights.
Sir Robert did comment that one of the school’s staff might have done more to explain to the police the nature of the Claimant’s condition, and one of the pool staff should not have described the Claimant’s behaviour as aggressive. However this did not exculpate the police.
In relation to quantum, the psychiatrist agreed that the Claimant (if his father’s account was correct) had suffered post traumatic stress disorder of moderate severity with a fair prognosis over time. Sir Robert would award £10,000. There had also been a temporary exacerbation of the Claimant’s epilepsy. Sir Robert said that the exacerbation period was two years, and so damages under this head would be awarded at £12,500. £5,000 would be awarded for damages pursuant to the Disability Discrimination Act, £500 for the common law damages for loss of liberty and £250 for the assault. There was no case for aggravated or exemplary damages. The remedies obtained in the litigation under domestic law have afforded just satisfaction and consequently there was no need to make any damages awarded under Section 8 of the Human Rights Act 1998. Total damages would be £28,250.