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Family Law

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Court of Protection Practice and Procedure Conference 2016

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19 FEB 2013

DEPRIVATION OF LIBERTY: Commissioner of Police for the Metopolis v ZH (A Protected Party, By GH, His Litigation Friend) (Liberty and the Equality and Human Rights Commission Intervening) [2013] EWCA Civ 69

(Court of Appeal, Lord Dyson MR, Richards, Black LJJ, 14 February 2013)

The claimant was a severely autistic and epileptic man who suffered from learning disabilities and could not communicate by speech. During a trip to the swimming pool the man became fixated by the water which led to the police being called. As a result of the police actions the man jumped into the water, he was removed from the swimming pool, was forcibly restrained by police officers, placed in handcuffs and leg restraints before being contained in the cage in the back of a police van.

The experience was intensely frightening and distressing for the man and the agreed medical evidence was that he experienced an acute level of psychological suffering and as a result of the incident suffered from post-traumatic stress syndrome and an exacerbation of epilepsy.

The police commissioner accepted that they used force on the man and that he had been imprisoned but contended that they had acted in his best interests within the meaning of the Mental Capacity Act 2005 and, therefore, were not liable in tort. The judge accepted the claimant's case that the officers had unwittingly exacerbated the situation by physically restraining him and that they had failed to comply with the duty to make reasonable adjustments to the application of their usual control and restraint policies in order to accommodate his disabilities. They had, therefore, unlawfully discriminated against him contrary to the Disability Discrimination Act 1995 and acted in breach of his rights under Arts 3, 5 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The claimant was awarded £28,500 in damages.

The police commissioner appealed all of the judge's findings on liability but did not seek to challenge the amount of the award of damages.

 There was no basis for a challenge of the judge's findings. It was not unrealistic for the man's carers to be consulted before the police took action. The MCA did not impose impossible demands on those who did acts in connection with the care and treatment of others. It required no more than was reasonable, practicable and appropriate. Appeal dismissed. 


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