On St Valentine's Day, the Court of Appeal handed down their decision in the case of Commissioner of Police of the Metropolis v ZH and Liberty (1) Equality and Human Rights Act Commission (2).

Z, a 16 year old who suffered from severe autism and epilepsy, was taken to see his local swimming pool to assist him in returning to swimming (but not to actually swim) by his carers. He became fixated by the water and did not move. The carers knew that Z had an aversion to being touched and was likely to react adversely so they tried to distract him. The police were eventually called by the pool manager. They were told about Z's autism. They took the view that he was at immediate risk and no one was taking control of the situation. They therefore touched Z and he jumped into the pool. He was subsequently restrained with handcuffs and leg restraints and placed alone in a cage in their police van. He was allowed to leave eventually but suffered psychological damage and an exacerbation of seizures.

This was an appeal against an award of damages in the sum of £28,250 by the judge at first instance.

The police lost the appeal.

The Court of Appeal made the following points:

  • Where the provisions of the Mental Capacity Act apply the common law defence of necessity has no application
  • However genuine their action, the police could not reasonably have believed that they were acting in Z's best interests when the matter is judged objectively
  • The police's actions were not a proportionate response to the likelihood of Z suffering harm and the seriousness of that harm at the time they acted
  • The treatment of Z amounted to inhuman or degrading treatment
  • There was a deprivation of liberty and not merely a restriction on movement. The actions of the police were in general well intentioned but they involved the application of forcible restraint for a significant period of time of an autistic, epileptic, young man when such restraint was, in the circumstances, hasty, ill-informed and damaging to Z. The restraint was neither lawful nor justified

The damages were made up of £10,000 for moderate post-traumatic stress disorder, £12,500 in respect of exacerbation of epilepsy, £5,000 in respect of the Disability Discrimination Act, £500 for loss of liberty and £250 for pain and distress from the assault.

The judge concluded by saying that this case highlights the need for there to be an awareness of the disability of autism within public services.