ZH v Commissioner of Police for the Metropolis

The Court of Appeal delivered a significant judgement yesterday regarding the police, the Mental Capacity Act and autism. Many have argued that it is an appeal case that should never have been brought at all given the clarity of the judgement in the initial County Court hearing.

THE INCIDENT

In 2008 a young man known throughout as ‘ZH’ was on a trip to a local swimming pool from his specialist school in West London. As the school party prepared to leave he became fixated by the water and stood fully clothed at the side of the pool, staring at the surface. None of this is unusual for people with severe autism and learning disabilities and he was accompanied by specialist school staff and of course, the pool was staffed by trained lifeguards.

After a period of time, the pool manager called the police, concerned that ZH may enter the pool in face of danger and that he was in contravention of rules regarding poolside access. The Metropolitan Police despatched several officers – the pool’s manager having contrived to state, inaccurately, that the young man was violent.

When the police arrived, they took control of the situation without much consultation with school staff and when one officer touched ZH on the back, he began to move with momentum towards the water. The officer and another tried to grab his arms in fear of him entering the water but he jumped in.

Lifeguards entered the water and formed something of a cordon, encouraging him to move to the shallow end. Once within reach, police officers pulled him out and then restrained him on his back with handcuffs and leg restraints before moving him to a police van. He remained there for a short while before being released and he left in the care of his teachers.

ZH claimed to have suffered a range of medical and psychological problems as a result of the events and action was brought against the Commissioner.

COURT PROCEEDINGS

In March 2012, ZH won his claim for assault, battery, false imprisonment and claims under the Human Rights and Disability Discrimination Acts. He was awarded over £28,000 in damages. The Metropolitan Police Commissioner Bernard Hogan-Howe was quick to announce that they would appeal the judgement.

In February 2013, the Court of Appeal unanimously dismissed the Commissioner’s points, specifically rejecting that the judgement would adversely affect the general ability of the police to respond to such incidents. The Commissioner has already indicated that he will not appeal further.

When I first read the original judgement it made complete sense to me. The explanation given of officers having acted under the Mental Capacity Act 2005 was unconvincing and almost completely in tune with abuse in another Metropolitan Police case, ‘Sessey’. I predicted that the Appeal would fail and am sorry to have been proved correct. It is sad to see it, especially when the particular officers involved were acknowledged to be trying hard to do the right thing. Unfortunately, they were hasty and misguided in their application of the law.

I don’t think we should under-estimate the damage that was done by appealing the original finding either. Rather than pay the damages awarded, the appeal has also been seen by others, including ZH’s father, as more public money defending the indefensible. This claim can now be made substantively, the police having lost and I’m not sure that the Metropolitan Police press release will help dispel that perception given it conspicuously fails to apologise, express regret or mention the young man involved or the impact upon him.

SO WHAT CAN BE DONE?

The likelihood of police officers being called to exactly similar circumstances where the verdict in this appeal can be directly implemented is small. But we have to take on board the lessons to be learned and turn this into advice for officers.

So what are the main messages? –

1. The Mental Capacity Act is not the right legislation for the police to use in non-urgent circumstances – it is best reserved for situations in which there is a genuine need to intervene in a life-threatening situation. This was not and it links to my next point:

2. The formation of sound judgement about risks and threats needs to improve and be accurate – of course it was a risk to ZH that he may have gone into the pool and officers would be wrong to ignore this. Had he done so, he was going into a pool which had numerous fully trained life-guards immediately on hand. It is not as if this was occurring at a canal side where the officers were the only people present – context is everything.

3. Even if action were immediately required because of some development in the situation not precipitated by the police, it could easily be argued that s136 of the Mental Health Act were more appropriate – although terminology is argued over, autism and learning disabilities are ‘mental disorders’ for the purposes of s1(1) MHA and the pool a place to which the public have access: once you have ‘immediate need of care or control’ you have a lawful basis for acting.

4. But by far the most important lesson in this situation is the recognition of a fallacy – this incident was a classic example of “something must be done, this is something so we’ll do this.” I also don’t doubt that it was done for the best of reasons but the broader context was that ZH was accompanied by specialist teachers and there were pool staff present. The police, in the court’s opinion, were too hasty in their approach and perhaps should have focused upon encouraging the staff to stop eating crisps and work with each other in leading resolution. We put our arm in the mangle, again, when best advice would have been to recognise that things not having reached a point of emergency, others were better placed to act.

DAMNED IF YOU DO, DAMNED IF YOU DON’T?

I’m not at all certain that I share the view expressed on Twitter that the police are damned either way. It was quite disappointing to see views basically saying, “We’ll next time we just won’t go” – sorry, you don’t get out of it just because it’s complex!

The National Decision-Making Model is quite handy here – think about risks / threats; think about laws / powers; take a judgement call in light of them all and crack on. It’s easy to conceive a response which is patient, tolerant and led by the most appropriate people and supported by the police in the background.

I am pleased, in a way, that this judgment has ended up being made. It reinforces important legal obligations on the police around equality, discrimination and human rights. I do think it also re-raises the debate about training:

The National Autistic Society straight away called for autism training for all police officers and managed to omit the courts remarks that the officers were, in ther court’s view, acting to safeguard ZH, however misguidedly.  My previous blog on policing and autism agreed with the need for training but this is a challenge that has to be seen against the background of calls by other interest groups for other types of mental health disorders for similar priority: dementia training, personality disorder training, bipolar training and many others. I don’t wonder whether what we really need is better legal training?

We have been found wanting and now it’s time to recognise that and raise our game. Policing mental health demands is core police business, accounting for twenty percent and more of our workload and so we need to get better at it.

Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England.  It doesn’t substantially alter the post but certain reference numbers have changed.  My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here.  The Code of Practice (Wales) remains unchanged. 


IMG_0053IMG_0052Winner of the President’s Medal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


 

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18 thoughts on “ZH v Commissioner of Police for the Metropolis

  1. Excellent blog. In the midst of the emotional reactions to the news story about the failed appeal, no-one seems to have taken the time to dissect the case so carefully and I think you have demonstrated a compassionate and intelligent approach. I disagree with the idea of training in autism, on the whole, because it is such an enormous spectrum – it is rather like training on ‘love’ or ‘religion’. Instead, as you have intimated, the problems arise from faulty decision-making, and the real skill of the effective policeman seems to me (a layman) to be in the arena of making individual decisions based on a critical analysis of specific situations. It is also salutory to remember the role of the pool manager, who set a context by falsely claiming the young man was violent. I would guess the police are faced with lots of similar claims on a call-out and they need much more acute analytical skills to determine whether this is indeed the case or whether they are being set on a course of action that will ultimately be seen to be faulty.

  2. Surely this can only lead to an increase in officers attending and deciding “this is a not a police job so we’re off”?

    Not that that is necessarily a bad thing. ZH was failed repeatedly by his teacher and carer, who at one point both left the building. The police may have been over zealous but why are they they only ones facing criticism and legal action? The root cause of the incident was the incompetence of school staff. They knew of his fixation with water, they knew it could be a major issue when they came to leave the pool.

  3. Firstly, I think the claim, made by the boys father, is appalling and a reflection of the compensation society we live in today. The father will no doubt justify the claim by stating that he doesn’t want something like this to happen to some other sufferer of autism, aspergers, ADHD, COD, personality disorders, schizophrenia, OCD, PSD, GAD Etc. Etc.

    I think the police were right to appeal the case on the simple basis they arrived and dealt with a situation as best as they could in the circumstances and thought they were doing the right thing for the ‘victim.’ Do you remember that old adage that you should not be punished for making reasonable mistakes? I have read the judgement and I undertsand the contention that we should have done this that and the other taking account of ZH’s needs.

    In an ideal world this would be wonderful. If we had police officers trained in the baics of dozens of mental health conditions we could arrive and have a cup of tea and a chat while discussing how we are going to deal with the man threatening to throw himself off a bridge or carve up members of the public with a machete.

    In the real world training to an extent that makes mental health experts of all police officers is impractical. The result of this decision is that police officers will be reluctant to take positive action against people with mental health disorders. You have suggested yourself that there are too many disorders to learn and that better legal training may be an option. The reality and result of this decision is that police officers will defer action and this will result in the death and injury of sufferers and of members of the public. But that will be the fault of the police too. Whenever we are called every other agency washes their hands of responsibility; in this case the boys carers and the pool management.

    1. ^This^

      I’m not sure the mistake was even a misapplication of the law – it was an assessment of the threat to ZH’s life and limb that the court disagreed with (with the benefit of hindsight and infinite time to consider the problem).

      MHC’s comments about the Met’s attitude to the case are valid, but that’s the general tone of Met senior management these days.

      The comments made about not turning up might be regrettable – but they are a direct indication of the frustration felt by officers being critiqued in unfair circumstances by the Monday-morning shudders.

  4. Well:-
    On becoming Home Secretary, Theresa May told senior officers she wanted to be crystal clear that the mission of the service was “to cut crime, no more and no less”

    So I’m confused – would this be crime? Should the officers have attended, discovered that there was no crime and left?
    It seems clear that there were others present better suited to manage the child – perhaps more of a standby to prevent a breech of the peace role would have been better – but is that cutting crime?

    Who is wrong?

  5. The Police have a duty to protect people from harming their self or others. Police are not mental health providers. They actually have people who do that job. If something happened to ZH, the Police would have been held responsible regardless. We know as Officers, we have many hats to wear. The marriage counselor, the one who consoles a person who just lost a loved one due to murder, car accidents and drunks. Now Police have to have a license in Mental Health also. Police have had many situations with Mental Health people who try to commit suicide by their hand or by cop. We try our best to negotiate with people to release hostages and victims of car jackers. The damned if you do and don’t always applies to the Police when making a decision we see fit ends up biting us in the ass and chastized by Public Opinion. Give us a break!

    1. I sympathise with the police in this instance as when someone is at risk they are called upon to get involved because none of these so called professionals wish to do it themselves. I am a mother of a severely mentally ill daughter who has got worse on drug after drug and diagnosed as Treatment Resistant. In other words these professionals have failed my daughter who should have had counselling in the first instance after what happened to her. The whole care system is wrong and so is the law as these psychiatrists can just manipulate and control/brainwash, delay tribunals to their hearts content.

  6. Up until a few years ago I would have agreed with the above comments but I’ve begun to realise that at times the police are they’re own worst enemy. As police have taken on more and more aspects of partner agencies deficiencies and regularly criticised in the press when it goes wrong we have, as mentioned in the original post, instilled the mentality that “something must be done, this is something so we’ll do this.” Although, as in this case, I think it’s more a case of “nobody else is doing so I probably should.

    We’ve all been there when somebody is enticed outside their home and placed under a 136 and this case isn’t to different. Nothing was happening so the situation was rushed and bad decisions were mad.

    So think on the next time a paramedic tells you the person self harming and they need removing to hospital. Is it really that serious? Are police really the best people to deal with it?

    1. Yes and if it all goes wrong the paramedic says I asked the police to help and they did nothing. Who gets the blame?
      By the way in your second line it should be their not they’re. They’re is a shortened version of they are. Petty I know but a pet hate of mine. Slight aspergers I think.

      1. I’m not saying do nothing I’m saying police are the ones who are going to use force so at least question why it needs to be done. Take the scenario a used about a self harmer.

        1) Is it life threatening? No? Then I’m not getting involved.
        2) Do they fail a capacity assessment? Why? Can’t explain? Then I’m not getting involved.
        3) Is there less restrictive way of resolving it? Yes but it’s a pain and you don’t know how? Then I’m not getting involved.

        Then when the paramedic says “I asked the police and they did nothing” I can answer “I asked the paramedic to justify why force was the only option available and they could not answer so rather than doing nothing I stayed at the scene to offer assistance while THEY resolved the issue and contacted their supervisor and MH team.”

        See, how taking a step back can still be justified, proportionate, legal…….yeah you get the point.

        As for my spelling, well that can happen after a long shift and trying to write on a phone

  7. I’m with sectioned detection on this.

    OK, the problem in this case was the dynamic assessment. If there was iminent risk of death or he was being violent then the ruling would hopefully have been different.

    But I also think there is a BIG issue about why police are having to deal with this type of incident. Why was he not being dealt with by the ‘carers’ ? If backup was neeeded, why was this not being sent from the ‘school’ ?

    There’s no crime. There’s no breach of the peace. Just a person who is not being looked after properly by the people responsible for his care.

  8. But this isn’t how it will happen. That is not a pragmatic solution. We all know that ambulances are like hens teeth now. Have you tried to call out the mental health team recently? They don’t come out.
    So in your scenario you either sit around for hours on end waiting for the right services to deal with the problem or you leave. The police do not have the resources to allow officers to sit around for hours in case someone with mental health problems kicks off and needs force to be detained. In reality we would leave and then be criticised for doing so if it goes wrong.

    I am constantly amazed at the poor use of there, their and they’re. I blame our useless education system rather than tiredness.

    1. Because people won’t wait around to do the job properly and it gets to the point were its expected of us to “do something”. But putting that to one side officers at least need to evidence that these options were considered, tried and failed. Unfortunately, police tend to assume they wont turn out so don’t even try why the gives NHS and MH Trust the get out of jail free card of “they never asked” which is what happened in this case.
      How about a different scenario then. Police get a call from MH ward that an AWOL patient has rang up saying they’re at home and wont return. How many times to police turn out without MH staff and bring them back? How many times have we used ‘life and limb’ to justify forcing entry because the MH teams couldn’t be bothered getting a 135 warrant? Get THEM to do the work!

      AWOL patient? What section? Don’t know? Call me back when you do know.

      So you now know, where shall we meet? You’ve no staff? Call me back when you have some.

      But they are HIGH risk? Why are they HIGH risk? Because they tried to commit suicide? How did they escape? You gave them leave? Not HIGH risk then are they, besides if you still think that you had better be quick about getting the staff together. Call me back when you’ve a warrant AND some staff.

      If the worst should then happen I can justify EVERY decision and show that I did everything legally possible to resolve the issue. Yes at times we’re put in difficult positions but that’s what we get paid to do.

  9. Just to answer those who wonder why the police were there in the first place, it was because the manager of the pool got fed up with the young man standing there and called the police, saying that there was a ‘big lad’ and that he was ‘getting aggressive’… As many have commented, the carers should have sorted it out without the police

  10. I echo a lot of the views expressed here regarding the invidious position officers sometimes find themselves in when having to deal with people suffering from mental ill health or learning disabilities, but the issue that really strikes me is the observations around an increase in training for officers. As has been pointed out we can not, nor should we expect police officers to be trained in every type of mental disorder or learning disability. There are people who have spent their working lives in the mental health arena who still learn something new everyday or there are even “experts” who disagree over certain issues. We can not expect police officers in dynamic and often urgent situations to be considering whether someone is just drunk, suffering from Aspergers Syndrome, is a paranoid schizophrenic or has Smith-Magenis syndrome !!!

    What is required is a basic understanding of relevant legislation & police powers and an application of the National Decision Model (NDM). This is something that is hopefully well understood by police officers having been around in one form or another for many years, especially in the firearms and public order world. It is therefore irrelevant, to a great extent, what type of mental ill health the person is suffering from as long as officers can spot that it is some sort of mental ill health.

    What is important is the ability of the officer to decide, based upon the specific circumstances of the case, firstly whether there is a need to act (threat & risk) and if there is a need to act who is best placed to do so e.g. the police, a carer, a relative or a health care professional. Difficulties in accessing those best placed to deal e.g. AMHPs or paramedics should never be an excuse for not trying to do so or having the default position of police officers feeling that “we’re here, therefore we need to do something about this situation”.

    The police then become the authors of their own misfortune in “plugging the gaps” in the service provision of other agencies, which means those “gaps” are never properly addressed and perhaps more importantly the evidence base to highlight failings in service provision isn’t there to inform commissioners that they need to have services in place with appropriate staff to meet the needs of people with mental ill health, who are often being failed by having the wrong service (the police) dealing with them at the time of most need.

    Officers then need to consider the legal powers involved in acting to resolve the incident i.e. Mental Health Act or Mental Capacity Act or the crimnal law. Then they must consider issues such as proportionality and justifiability.

    It is better basic legal training around s136 MHA and the Mental Capacity Act and their Codes of Practice, as well as applying the NDM which is more important then trying to train police officers to recognise every mental illness or learning disability under the sun.

  11. This case is just another example of Police Officers making a mistake and then claiming that they did nothing wrong.

    It happens all the time and in most cases their colleagues can scuttle any investigation. When that doesn’t work a trip down the lodge and a few funny handshakes is usually enough.

    The case above is one of the rare ones which has made it through the net. Let’s face news of police brutality against an autistic kid is going to sell newspapers and with all those reliable and upstanding witnesses (Teachers & Lifeguards) it was always going to be hard to the officers involved to sit down and collude with each other or find an easy way out of embarrassing themselves.

    Imagine if they had got together shortly after the event and visited the boy and his family to say “Sorry. We got it wrong. We are genuinely sorry. We misread the situation after being told you was violent. We are nice guys really how can we make this up to you? How about we go….. and grab something from to eat after.”

    And the cops still are not bright enough to work out why public confidence in them is at such a low level……..

    1. No criticism for the staff then? You know the ones who took an Autistic boy, with an obsession with water, who couldn’t swim to a pool then failed to act when it went wrong. Or how about the pool manager who called the police because he wanted to shut the building then exaggerated the circumstances to get a response?

      1. None required, they did not assault the poor kid. The Police did, and tried to pretend they were right to do so. An act which costed the taxpayer an awful lot of money.

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