Article 5 – deprivation of liberty
This was the unsuccessful appeal by the Metropolitan Police against the decision of Sir Robert Nelson ( EWHC 604 (Admin)), awarding substantial damages to reflect their breaches of common law and the Disability Discrimination Act 1995. By way of a very quick refresher upon the facts, ZH was a severely autistic, epileptic nineteen year old young man who suffered from learning disabilities and could not communicate by speech. In September 2008, he was taken by the specialist school he attended to a swimming pool for a familiarisation visit. Matters went very badly awry during the course of that visit, in particular following the decision of the manager of the pool to ring the Police when difficulties were experienced in persuading ZH to move away from the side of the pool. The arrival of the police gave rise to an escalating series of events which culminated in ZH first jumping into the pool, being forcibly removed from it, being handcuffed, put in leg restraints and placed in a cage in the back of a police van for a period of around 40 minutes. As a result of this, ZH suffered consequential psychological trauma and an exacerbation of his epileptic seizures.
Sir Robert Nelson found that the police had not only committed the torts of trespass and false imprisonment, but had also breached ZH’s rights under Articles 3, 5 and 8 ECHR and also the DDA 1995.
The Metropolitan Police appealed. The Court of Appeal had no hesitation in dismissing the appeal, the sole – very strong – judgment being given by the Master of the Rolls, Lord Dyson, with whom Richards and Black LJJ agreed.
As regards the conclusions reached by Sir Robert Nelson upon the MCA 2005 issues, the primary basis of the appeal was that the judge had failed to have regard to the “fact that the reasonableness of the officers' conduct and beliefs fell to be assessed by reference to a fast moving situation in which swift decisions had to be taken. In short, he failed to take account of the need to accord to the police a reasonable degree of operational discretion. She goes so far as to say that the judge's decision makes it impossible to conduct practical policing in emergency situations which involve persons who suffer from incapacity” (para 35).
Lord Dyson MR started with some general observations about the MCA 2005 with particular reference to the acts done by police officers directed at the care of a person who lacks capacity, thus:
“39. I start with a few general observations about the MCA with particular reference to the acts done by police officers directed at the care of a person who lacks capacity. Where such acts would otherwise attract liability for the torts of assault and false imprisonment, they will not do so if (i) the officers reasonably believed that the person lacked capacity (having taken reasonable steps to establish whether that was so (section 5(1)(a)and (b)(i)); (ii) they reasonably believed that those acts were done in the person's best interests (section 5(1)(b)(ii)); and (iii) in the case of a restraint, they reasonably believed that they were necessary in order to prevent harm to the person and that it was a proportionate response (section 6(2) and (3)). I have set out the provisions relating to "best interests" at para 22 above.
40. A striking feature of the statutory defence is the extent to which it is pervaded by the concepts of reasonableness, practicability and appropriateness. Strict liability has no place here. Of particular relevance to the present case is the fact that D is under no liability to P in tort for an act done in connection with the care or treatment of P, if he reasonably believes that it will be in P's best interests for the act to be done; and (in the case of restraint) if he reasonably believes that it is necessary to do the act in order to prevent harm to P; and he is obliged to take into account the views of, amongst others, anyone caring for P, but only if it is practicable and appropriate to consult the carer.
41. We heard submissions on behalf of Liberty and the Equality and Human Rights Commission as to the meaning and effect of the MCA. For example, Mr Coppel [on behalf of the EHRC] submitted that, where a best interests decision has been taken which does not comply with the requirements of section 4, the section 5 defence which relies on that decision is not available: a reasonable belief defence cannot be founded on an invalid best interests determination. Another way of making the same point is to say that, if section 4 has not been complied with, the belief asserted by the defendant under section 5(1)(b)(ii) cannot be a reasonable belief. There is force in this submission. But I do not find it necessary to express a concluded view about it for the resolution of this appeal."
Reliance was also placed by the EHRC on the MCA Code of Practice, but as it was not relied upon at first instance, Lord Dyson found (para 42) that it would not be appropriate to determine the appeal by relation to it.
Lord Dyson then went on to dissect Sir Robert Nelson’s analysis of the various stages of the police intervention. He found to be unassailable Sir Robert’s conclusions that the police officers reasonably believed that ZH lacked capacity before any touching took place, and that they had no reasonable belief that there was in fact an emergency which required them to act before speaking to his carers (paras 46 and 49). Nor did he consider it unrealistic for Sir Robert to have concluded that it was practicable and appropriate for the officers to consult the carers before approaching and touching ZH (para 49). Perhaps importantly, he noted in the same paragraph that:
"the MCA does not impose impossible demands on those who do acts in connection with the care or treatment of others. It requires no more than what is reasonable, practicable and appropriate. What that entails depends on all the circumstances of the case. As the judge recognised, what is reasonable, practicable and appropriate where there is time to reflect and take measured action may be quite different in an emergency or what is reasonably believed to be an emergency."
It was therefore open to the judge to hold, as he did, that the officers had not acted in ZH’s best interests (para 50). For essentially similar reasons, Lord Dyson found to be ill-founded the challenges to Sir Robert’s conclusions in respect of the time that ZH was in the water and after he was lifted out of the pool (paras 52; 55-7).
Lord Dyson summarised his conclusions thus at paragraph 67:
"67. I do not find it necessary to make detailed observations as to the scope of the duty to make reasonable adjustments. What is reasonable will depend on the facts of the particular case. Section 21E(2) states in terms that it is the duty of the authority to take such steps as it is reasonable in all the circumstances of the case to have to make to change the practice, policy or procedure so that (relevantly for the present case) it no longer has detrimental effect. I accept that police officers are not required to make medical diagnoses. They are not doctors. But the important feature of the present case is that, even before they restrained ZH, they knew that he was autistic and epileptic. They knew (or ought to have known) that autistic persons are vulnerable and have limited understanding. Further, I see no basis for holding that the duty to make reasonable adjustments is not a continuing duty. In my view, the judge was entitled to reach the conclusion that he did on this issue. It was a decision on the particular facts of this case. I reject the submission that his decision makes practical policing unduly difficult or impossible."
In finding that the judge had not erred in his conclusion that the treatment meted out to ZH reached the requisite minimum level of severity, Lord Dyson noted that:
"76 […] The following features of the present case are important. ZH was a very vulnerable young man. He suffered from autism and was an epileptic. He was only 16 years of age at the time. The episode lasted about 40 minutes. He would not have understood what was going on and why he was being forcibly restrained by a number of officers by the poolside and later in the police van. He was restrained by handcuffs and leg restraints. He was wet and lost control of his bowels. His carer was not permitted to get into the cage to comfort him. He had done nothing wrong and he was extremely distressed and crying. The consequence of the experience was that he suffered (i) post traumatic stress disorder from which he was only recovering by the time of the trial (more than two years after the event); and (ii) a significant exacerbation of his epilepsy for about two years. On the other hand, it is also relevant that the officers did not intend to humiliate or debase him, although this is not a conclusive factor.
77. I acknowledge that a court should not lightly find a violation of article 3. The ECtHR has repeated many times that a minimum degree of severity of treatment is required. Whether that degree of severity is established on the facts of a particular case involves a question of judgment. The judge was better equipped than this court to be able to evaluate the seriousness of the treatment, taking all the circumstances of the case into account. In my view, we should only interfere if we consider that it is plain that the judge made the wrong assessment. It is clear from para 144 of his judgment that he took into account all the essential relevant factors. Although the police officers were acting in what they thought to be the best interests of ZH, on the judge's findings they made serious errors which led them to treat this vulnerable young man in a way which caused him great distress and anguish. In my judgment, the judge was entitled to find that the threshold of article 3 had been crossed on the particular facts of this case."
At paragraph 83, Lord Dyson MR rejected a submission (founded upon the decision of the ECtHR in Gillan v UK (2010) EHRR 45) that Strasbourg would usually view a detention of less than 30 minutes as not coming within the scope of Article 5. He went on in the same paragraph to note that the restraint of ZH was "closely analogous to the classic of paradigm case of detention in a prison or police cell. In particular, it is difficult to see any difference in kind between being detained in the caged area at the back of a police van and being detained in a police cell. In fact, ZH was deprived of movement throughout the entire period of the restraint. The restraint was intense in nature and lasted for approximately 40 minutes and its effects on ZH were serious."
Having held (at para 84) that Sir Robert Nelson had correctly had regard to the particular facts of the case and made an assessment of the "type, duration, effects and manner of implementation of the measure in question," and was entitled to reach the conclusion that he did for the reasons that he gave, Lord Dyson discussed the question of the relevance (or otherwise) of purpose, thus:
"85. We heard argument as to whether the fact that, as the judge found, the purpose and intention of the police was at least in part to protect ZH's safety was relevant to whether there was a breach of article 5. The judge thought that it was, but nevertheless held that there had been a breach. The case of Austin v Metropolitan Police Commissioner  UKHL 5,  1 AC 564 is relevant here. At para 44, Lord Walker said: "the purpose of confinement which may arguably amount to deprivation of liberty is in general relevant, not to whether the threshold is crossed, but to whether that confinement can be justified under article 5(1)(a) to (f)".
86. This approach was endorsed by the ECtHR in Austin v United Kingdom 92012) 55 EHRR 14 at para 58. But the court said at para 59:
‘However, the Court is of the view that the requirement to take account of the "type" and "manner of implementation" of the measure in question enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good. As the judges in the Court of Appeal and House of Lords observed, members of the public generally accept that temporary restrictions may be placed on their freedom of movement in certain contexts, such as travel by public transport or on the motorway, or attendance at a football match. The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as "deprivations of liberty" within the meaning of art.5(1).’
87. To this extent and in such circumstances, therefore, the purpose and intention of the person applying the restraint may be relevant to whether there is a breach of article 5. It is not necessary to explore this further since, as Mr Coppel points out, this reasoning could not apply in the present context. Quite apart from the fact that this is very close to being a paradigm case, there is nothing common or usual about what happened to ZH and no general acceptance by members of the public that they are liable to be treated as ZH was treated."
The police having conceded that their appeal upon the judge’s findings in respect of Article 8 stood or fell with their appeals against the findings in respect of Articles 3 and 5, Lord Dyson MR held that the appeal fell in this respect as well.
At paragraph 90, Lord Dyson concluded with an important general observation:
"90. As I have said, I reject Ms Studd's submission that this decision unreasonably interferes with the operational discretion of the police or that it makes practical policing impossible. I accept that operational discretion is important to the police. This was recognised by the judge. It has been recognised by the ECtHR (see Austin at para 56). And I have kept it well in mind in writing this judgment. But operational discretion is not sacrosanct. It cannot be invoked by the police in order to give them immunity from liability for everything that they do. I doubt whether Ms Studd intended to go so far as to suggest that it can. Each case must be carefully considered on its facts. I do not believe that anything said by the judge or by me in this judgment should make it impossible to carry out policing responsibly. One is bound to have some sympathy for the police in this case. They were intent on securing the best interests of everyone, not least ZH. But as the judge said, they behaved as if they were faced with an emergency when there was no emergency; and PC Colley and PC McKelvie did not in fact believe that there was an emergency. Had they consulted the carers, the likelihood is that ZH would not have jumped into the pool in the first place. The police should also have consulted the carers before lifting ZH from the pool. Had they done that, it is likely that with their help, the need to restrain him would have been avoided. Finally and most seriously of all, nothing could justify the manner in which they restrained ZH."
That the Court of Appeal dismissed the police’s appeal against the judgment of Sir Robert Nelson was not a foregone conclusion; that it did so in such robust terms was even more of a surprise. For all (not just the police) who are confronted with fast-moving situations involving those who appear to lack the capacity to make relevant decisions, the critical lesson is that it is necessary to calibrate the measures taken to the circumstances, and (if at all possible) for a step back to be taken to assess whether the situation is really a true emergency, or whether it is one where it is possible to seek input from others who may be able to assist in defusing the situation.
As to the wider issues of the interpretation of the MCA 2005, it would appear that in light of Lord Dyson’s indication that he found force in the submission that absent a valid best interests decision s.5 MCA 2005 cannot be relied upon, it is prudent to proceed on the basis that as many as possible of the steps required by s.4 MCA 2005 should be complied with before proceeding under both s.5 and s.6 MCA 2005. That statement should, though, be read in light of the overarching observation of Lord Dyson that what the MCA 2005 requires is reasonableness, practicability and appropriateness: the requirement to comply with s.4 will clearly be more pressing: (1) the more draconian/invasive the step; and (2) the more time there is available in which to consult etc before the step is required.
More difficult, perhaps, is the question of whether, where the MCA 2005 applies, the common law defence of necessity is not available. The conclusions of Sir Robert Nelson in this regard (at paragraph 44) were strictly obiter dicta; they were not discussed by Lord Dyson in his judgment. That having been said: (1) the tenor of Lord Dyson’s judgment was such that it could be said to have represented an endorsement of the entirety of Sir Robert’s judgment – including this paragraph; and (2) the conclusions of Sir Robert Nelson are entirely consistent with those of the Divisional Court in Sessay regarding the (non-existence) of the defence of necessity where the MHA 1983 applies. However, given the conclusions of Lord Dyson upon the question of whether ZH was deprived of his liberty, and given the wording of the MCA 2005 as it now stands, this does give rise to a difficult practical question where an emergency situation arises in respect of an adult who would appear not have to capacity to take decisions regarding their welfare but whom is not the subject of any form of Court order or DOLS authorisation. To understand the problem, it is necessary to have regard to the wording of both ss.4A and 4B (both inserted by the MHA 2007):
"4A Restriction on deprivation of liberty
(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.
(2) But that is subject to–
(a) the following provisions of this section, and
(b) section 4B.
(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.
(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.
(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).
4B Deprivation of liberty necessary for life-sustaining treatment etc
(1) If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.
(2) The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.
(3) The second condition is that the deprivation of liberty–
(a) is wholly or partly for the purpose of–
(i) giving P life-sustaining treatment, or
(ii) doing any vital act, or
(b) consists wholly or partly of–
(i) giving P life-sustaining treatment, or
(ii) doing any vital act.
(4) The third condition is that the deprivation of liberty is necessary in order to–
(a) give the life-sustaining treatment, or
(b) do the vital act.
(5) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition."
In light of the decision in ZH it is clear that a person can be subjected to a deprivation of liberty which may only last a relatively short period of time (the restraint whilst he was at the pool-side lasted about 15 minutes, the restraint in the police van lasted about 25 minutes). The wheels of the COP administration can move very swiftly (for instance in the case of medical treatment cases involving the necessity for blood transfusion during labour) but not that swiftly. However, in the case of a true emergency where the deprivation of liberty to which the adult is subjected in response arises immediately and is of very short duration (say no more than 30 minutes), but is severe, even if it could be said that the first condition in s.4B is met (i.e. that any deprivation of liberty to which the individual was subjected would be capable of being authorised – most likely by a court order under s.16(2)(a)), it will somewhat likely be straining the language of s.4B to say that the deprivation of liberty is taking place while a decision respecting that issue is sought from the Court. The Court of Appeal did not have to grapple with this question in ZH, not least as the case arose out of events which took place in 2008. Even if an interpretation was placed upon s.4B that it applies even if the most minimal steps have been taken to seek a decision from the Court, perhaps by way of initial telephone contact to get before the Urgent Applications judge, the fact remains that it is likely that there will – even with suitable diligence on the part of the relevant authorities – be circumstances under which s.4B simply cannot be said to offer protection from liability.
In such circumstances, it is suggested that there does remain a place for the common law defence of necessity because there is a true lacuna. It is of note in this regard that:
a. s.4A provides solely for the ability of an individual to deprive another of their liberty under the provisions of the MCA 2005 – it does not purport to exclude the deprivation of liberty of an incapacitated adult outside the provisions of the MCA 2005;
b. it would appear that the inherent jurisdiction would still seem to extend to authorising the deprivation of a liberty of an adult falling outside the scope of the MCA 2005: see Re A and C (Equality and Human Rights Commission Intervening)  EWHC 978 (Fam)  COPLR Con Vol 10 per Munby LJ:
"74 … There is no longer any room for doubt that a judge exercising the inherent jurisdiction of the High Court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. And the High Court’s powers extend to authorising that person’s detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there: see Re PS (Incapacitated or Vulnerable Adult)  EWHC 623 (Fam),  2 FLR 1083 at para . But if a local authority is to resort to such measures it must, unless it can bring itself within the new ‘deprivation of liberty’ amendments to the Mental Capacity Act 2005 effected by the Mental Health Act 2007 (the new ss 4A, 4B and 16A and the new Sch A1 and 1A), first enlist the assistance of the court and do so before it embarks upon such measures: see Re PS (Incapacitated or Vulnerable Adult, at para , and A Primary Care Trust and P v AH and A Local Authority  EWHC 1403 (Fam),  COPLR Con Vol 179,  2 FLR 1196 at paras , ." (emphasis added).
c. whilst Munby LJ in
Re A and C made it clear that enlisting the assistance of the Court is a pre-requisite to the local authority being able to obtain an order under the inherent jurisdiction, he was not concerned with the emergency situation that we are considering here: for our purposes, what is important is that he did not hold that the MCA 2005 (as now amended by the MHA 2007) now provided the complete code for the authorisation of the deprivation of liberty that (for instance) the MHA 1983 does in respect of those whom it is proposed to admit for purposes of assessment and treatment.
It is suggested, however, that the common law defence of necessity will only avail a person who is able to show that they were confronted with the need to deprive the incapacitated adult of their liberty in a true emergency position where:
a. it was not possible to seek the assistance of the Court either before or during the currency of that deprivation of liberty;
b. no other statutory power existed upon which reliance could be placed (for instance s.17 PACE 1984 or s.135 MHA 1983); and
c. where it was necessary so to do to preserve them from serious harm.
An interesting question which may still fall for consideration upon another day is whether there is an equivalent lacuna in the statutory law so as to allow for the common law defence of necessity to survive where the deprivation of liberty takes place, not for purposes of safeguarding the life and limb of the incapacitated adult, but that of a third party (the MCA 2005 being focussed solely on the best interests of adult rather than those of anyone else). At common law, the defence of necessity may be pleaded where the detention takes place so as to prevent a danger to another (see R v Bournewood Community and Mental Health N.H.S. Trust, Ex parte L  1 A.C. 458 at 490 per Lord Goff: "the common law permit[s] the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary.") For purposes of the ECHR, any deprivation of liberty attributable to the State would have to be such as to fall within one of the permitted bases for so doing under Article 5(1), but it is clear that a deprivation of liberty on the basis of mental disorder can be justified on the basis that a person constitutes a danger to others (and that in the event of emergency, the normal requirements as regards the obtaining of medical evidence objectively establishing a mental disorder can be dispensed with: see Winterwerp v The Netherlands (1979) 2 EHRR 387 at para 39 and X v United Kingdom (Application No 7215/75, decision of 5.11.81) at paras 41 and 45).
Again, however, it is likely that any attempt by a public authority to rely upon the common law defence of necessity in such a case will be scrutinised very narrowly by the Courts so as to ensure that it only survives where there is a true lacuna (and so that does not offend against the provisions of Article 5 ECHR).
Finally, the comments of Lord Dyson MR as regards the relevance (or otherwise) of purpose to the question of whether or not a person is deprived of their liberty are of no little interest to the debate that will be had before the Supreme Court in October 2013, not least as they support the contention that the somewhat ambiguous comments of the Grand Chamber in Austin were made in a context far removed both from those of ZH and, indeed, those in care homes/hospitals.