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.
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.
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.
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