6.17Commissioner of Police for the Metropolis v ZH [2013] EWCA Civ 69, (2013) 16 CCLR 109
The police had failed to make ‘reasonable adjustments’ by moderating their approach to physical restraint in the case of a young adult who suffered from severe autismValuing People strategy:reasonable adjustments
Facts: ZH, who suffered from severe autism, epilepsy and learning disabilities, became fixated by the water at a local swimming pool and would not move away from the poolside. His carers knew that if he was touched he might jump into the pool. The swimming pool manager called the police who after a brief conversation with the carers, established that ZH was autistic, went up to him and touched him. ZH then jumped into the pool (he was fully clothed at the time). The police then pulled ZH out of the pool and restrained him before taking him, soaking wet and agitated, to the police station. ZH sued.
Judgment: the Court of Appeal (Lord Dyson MR, Richards and Black LJJ) held that the first instance judge had been entitled to conclude that the police had breached ZH’s rights under Articles 3, 5 and 8 ECHR, and that they were guilty of assault and false imprisonment and a breach of section 21B of the Disability Discrimination Act 1995. The police defence under the Mental Capacity Act 2005 failed: while sections 4–6 of that Act permitted certain acts to be done in connection with the care and treatment of persons lacking capacity if it is in their best interests, those statutory defences were pervaded by concepts of reasonableness, practicability and appropriateness, which were lacking in this case: the police could and should have consulted with ZH’s carers about how best to handle him and could not have had a reasonable belief that their actions were in his best interests:
61. The judge first dealt with the reasonable adjustments pleaded at para 33 (i), (ii) and (vi) which all related to consulting the carers. He concluded that it was ‘practicable and appropriate, indeed essential, that the police informed themselves properly before taking any action which led to the application of force on [ZH]’ (para 134). In effect, he repeated what he had said earlier in relation to the MCA issues. Importantly, he rejected the defence submission that (i) there was no evidence that the police intended to restrain ZH in advance of his coming out of the water and (ii) it was not reasonable to expect the officers to consult the carers beforehand (para 135). He said:
‘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.’
62. The judge also accepted ZH’s case on each of the other pleaded reasonable adjustments and rejected in its entirety the plea of justification. As regards justification, he held that it was not necessary in order to avoid endangering the health or safety of anyone (including ZH) to have carried on without seeking information and advice from the carers.
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67. I do not find it necessary to make detailed observations as to the scope of the duty to make reasonable adjustments. What is reasonable will depend on the facts of the particular case. Section 21E(2) states in terms that it is the duty of the authority to take such steps as it is reasonable in all the circumstances of the case to have to make to change the practice, policy or procedure so that (relevantly for the present case) it no longer has detrimental effect. I accept that police officers are not required to make medical diagnoses. They are not doctors. But the important feature of the present case is that, even before they restrained ZH, they knew that he was autistic and epileptic. They knew (or ought to have known) that autistic persons are vulnerable and have limited understanding. Further, I see no basis for holding that the duty to make reasonable adjustments is not a continuing duty. In my view, the judge was entitled to reach the conclusion that he did on this issue. It was a decision on the particular facts of this case. I reject the submission that his decision makes practical policing unduly difficult or impossible.