Mental health law briefing 178 – Case update: Powers of restraint and the High Court’s inherent powers
The recent case of ZH (by his litigation friend) v. Metropolitan Police Commissioner has given some helpful guidance on the use of restraint powers under the Mental Capacity Act 2005 (MCA).
The case concerned ZH an autistic, epileptic young man who suffered from learning disabilities. He was unable to communicate by speech. In September 2008 ZH, who was then 16 years old, attended Acton Swimming Baths on a familiarisation visit with his school. He was supported on a one to one basis during the visit by a classroom assistant, SB. When ZH left the viewing gallery where they had been viewing the pool, he broke away from the other pupils who had attended and made his way to the poolside. He became fixated by the pool and could not be persuaded to move away from the water’s edge. The staff present were aware that ZH did not like to be touched and was likely to react adversely if this was attempted. His class teacher took the other children back to school with a view to returning with additional assistance. After ZH had been standing at the poolside for between 20 and 30 minutes, the swimming pool manager confirmed that he needed to be removed from the poolside. SB wanted to wait for additional members of staff to return, however the pool manager decided to contact 999 and the police were called.
Two police officers attended the swimming pool and approached ZH with one of them touching him on the back. The evidence is that they had not spoken to the ZH’s carers in any detail as they did not consider they had time to do so. Having been touched, ZH moved closer to the pool and, as a consequence, the police officers took hold of his jacket but were unable to stop him from going into the water. The water came up to ZH’s chest and lifeguards entered the pool and sought to persuade ZH to go to the shallow end of the pool. The evidence given is that at no time did ZH’s head go under the water nor did he swallow any water. The police officers on the scene did not consider that he was in danger of drowning. Further police officers attended the scene and still did not engage with staff from the school who knew ZH’s needs. ZH was moved to the shallow end of the pool by life guards and the police officers, who were concerned for ZH’s safety, considered that he needed to be removed from the pool. He was therefore lifted out of the pool by lifeguards and his arms were taken by two police officers. This was a difficult procedure and ZH ended up on the floor on his back. Five police officers had to apply force to restrain him as he was struggling. Leg restraints and handcuffs were applied at which point the force ceased. ZH was then removed from the swimming pool and placed in a cage in the rear of a police van. His carer attended and calmed ZH down and the handcuffs and leg restraints were subsequently removed.
The claimant subsequently suffered psychological trauma which exacerbated his epileptic seizures. Proceedings were brought against the Police Authority with damages claims for; assault and battery, false imprisonment, disability discrimination under the Disability Discrimination Act 1995, and alleged breaches of Articles 3, 5 and 8 of the European Convention on Human Rights.
The Court went on to reach the following findings. It confirmed that once it had been established that force/imprisonment had been used upon ZH, it was for the defendant to show a lawful basis for the use of such force or imprisonment. In order to achieve this, the defendant needed to demonstrate that the police officers had complied with the provisions of the Mental Capacity Act 2005 in particular sections 5 and 6 concerning the use of restraint of incapacitated individuals. The Court confirmed that it was not sufficient for the police officers to simply establish that they had acted honestly and in good faith. The Court confirmed that it was not necessary for the police officers:
“ …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 judgement 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 practical and appropriate to consult the carers, to take into account their views.”
The Court also confirmed that where the Mental Capacity Act applied, the common law defence of necessity had no application. In light of these findings, the Court went on to consider the precise actions of the police officers at the swimming pool. It held that with regard to the force that had been applied to ZH before he had entered the swimming pool, the officers had failed to satisfy the requirements of the MCA. In particular, the Court considered that by touching ZH before consulting with his carers the officers had failed to consider all relevant circumstances, one of the preconditions of assessing whether an act is in someone’s best interests under s4 of the MCA. It was considered that the police officers could therefore not have reasonably believed that they were acting in the claimant’s best interests. Nor were their actions considered by the Court to be a proportionate response to the likelihood of the claimant suffering harm. Again, with regard to the claimant’s removal from the pool, the police officers’ failure to consult with the carers meant that they had not fully understood the potentially serious consequences of using force and restraint on ZH. The court held that the police officers had failed to show that they reasonably believed it had been in ZH’s best interests to remove him from the pool in the manner that they had done. With regard to the restraint on the pool side, again the Court found that the officers could not have reasonably believed that the level of force used was in ZH’s best interests.
As a consequence of these findings, the Court awarded damages for assault and battery of £750 and with regard to the personal injury suffered by the claimant, a sum of £22,500 was awarded.
The Court went on to award £5,000 in respect of a breach of the Disability Discrimination Provisions. The Court also found that Article 3 (inhuman or degrading treatment), Article 5 (right to liberty and security) and Article 8 (right to respect for private and family life) had all been breached but considered that the remedies obtained under the civil provisions noted above were sufficient satisfaction and that damages were therefore not necessary.
This case is an important one for all those working with incapacitated individuals where restraint is used. What the case confirms is that where staff restrain incapacitated individuals the legal power for the restraint ordinarily comes from the Mental Capacity Act 2005. Staff must therefore be aware of its provisions and requirements, particularly within s5 & 6 and be happy that before and during any restraint those provisions and requirements have been considered and are met. Notably from the facts of this case there is a need for staff to be able to evidence that any restraint used is both proportionate and in the individual’s best interests. For further details of the specific requirements under the Mental Capacity Act in relation to restraint, please see our Mental Health Law Briefing No. 153.
Inherent Jurisdiction of the Court
In another recent case concerning the MCA, the Court of Appeal have considered the extent of the High Courts’ inherent jurisdiction in relation to individuals who lack capacity. The case of A Local Authority and others v. DL concerned an elderly couple, M and G. Their son, the defendant (D), lived with them in a property owned by G. The claimant local authority was worried about the behaviour of D with regard to his parents and alleged that he had been aggressive towards them and that further he had controlled who could visit them including controlling visits by health and social care professionals. There had also been reports that D had attempted to persuade G to sign the house over to him and had allegedly pressurised M and G to have M moved into a care home.
Proceedings were issued by the local authority in order to protect M and G. However, the Authority acknowledged that on the information it had at that time neither M or G had an impairment or disturbance in the functioning of their mind or brain as required under the Mental Capacity Act which caused them to lack capacity to bring proceedings. The Court sought the Official Solicitor to investigate the parents’ wishes. The Official Solicitor, via an independent social work expert found that there was evidence to suggest that M and G may have been deprived of capacity to decide the issues in question due to the undue influence of their son.
As the proceedings continued, a preliminary issue considered by the Court was whether it had inherent jurisdiction to handle matters involving vulnerable adults in situations where the provisions of the Mental Capacity Act 2005 were not actually engaged. The High Court concluded that it did have inherent jurisdiction. The son appealed the Court’s decision and the Court of Appeal concluded that:
“The Court’s inherent jurisdiction was targeted solely at those adults whose ability to make decisions for themselves had been compromised by matters other than those covered by the [Mental Capacity Act 2005]. The jurisdiction was, in part, aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy had been compromised by a reason other than mental incapacity because they were: (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.”
The Court of Appeal noted that the Mental Capacity Act was limited to individuals who lacked mental capacity, it did not cover individuals who might lack capacity for a reason other than an impairment of, or disturbance in the functioning of the mind or brain. The Act was also silent on whether the High Court had any inherent jurisdiction. Accordingly, the Court of Appeal found that in the absence of any express provision, the Courts’ inherent jurisdiction continued to be available. It was also felt that there was a strong public policy basis for its continued use and that its use was compatible with article 8 of the Convention of Human Rights (right to respect for private and family life).
The case provides useful guidance for the circumstances where vulnerable individuals may not lack capacity due to an impairment or disturbance of the mind or brain as required under the Mental Capacity Act but may have their capacity compromised due to coercion, constraint, undue influence or some other reason. The judgment has confirmed that in those situations the High Court rightly holds an inherent jurisdiction to act in order to protect such vulnerable individuals.
1  All ER (D) 134 (Mar)
2 Section 5 of the MCA concerns acts done in connection with care and treatment and excludes liability for acts done if the person carrying out the act reasonably believes that the individual concerned lacked capacity in relation to the matter and that the act carried out was in the person’s best interests.
Section 6 confirms that where restraint is carried out, in addition to the requirement of s5, the person restraining the individual must reasonably believe that is necessary to use restraint in order to prevent harm to the incapacitated individual and in addition that the restraint used is a proportionate response to the likelihood of the incapacitated person suffering harm and the seriousness of that harm.
3 ZH (by his Litigation Friend) v. Metropolitan Police Commissioner  All ER (D) 134 (Mar)
4 See RadcliffesLeBrasseur MCA Best Interests checklist
5  All ER (D) 2011 (Mar)
6 See Digest of A Local Authority and others v. DL  All ER (D) 2011 (Mar) and paras 53 and 54 of the full judgment
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.