ZH v The Commissioner of Police for the Metropolis [2012] EWHC 604

CASE DIGEST

The Claimant was a 19-year-old man who was autistic and had epilepsy and a learning disability. He was 1.7 metres tall and weighed 93 kilograms. He could not communicate by speech. He brings this claim through his father, as his litigation friend. The claim is for assault, battery, false imprisonment and unlawful disability discrimination under the Disability Discrimination Act (DDA) 1995 and the Human Rights Act (HRA) 1998, alleging breaches of Articles 3, 5, and/or 8 of the European Convention on Human Rights (ECHR). When the claim arose, the claimant was 16 years old, living at home and attending a school that specialised in providing education for those with Special Educational Needs (SEND). 

The incident

On September 2008, the Claimant was taken with four other pupils to Acton Swimming Pool on a familiarisation visit. It was not intended for children to swim or be near the water. The purpose of the visit was to help the pupils adjust to new sensory surroundings to be more relaxed when they subsequently came for swimming lessons. The pupils were accompanied by three school staff, including ZH's classroom teacher and two teaching assistants. One of those teaching assistants, Sateesh Badugu, provided one-to-one support to the claimant. 

After the group left the viewing gallery above the pool, the Claimant broke away from the group and made his way to the poolside. He became fixated on the water. Despite the school staff's attempts to have him refocus on something else, he could not be encouraged to move away from the poolside. School staff knew physical contact with ZH would likely cause him significant distress. Ms Namballa, ZH's school teacher, returned to the school nearby with the other pupils to get assistance. She asked Mr Badugu to stay at the pool in charge of the Claimant. 

One of the lifeguards, Yvette Burton, arrived on duty at the pool. She saw ZH standing fully clothed by the poolside railings. ZH was standing very close to the water. Mrs Burton spoke to another lifeguard on duty throughout, who reported that ZH had been standing there for 20-30 minutes and would not move away. Mrs Burton told her manager, Christian Hartland, about the situation. She did not say he was about to jump, though she was concerned he might enter the water. 

999 call

Mr Badugu made it clear to Mrs Burton and the other staff that he was autistic and, in no uncertain terms, should any of the staff stand in front of ZH. Mr Hartland attended poolside some 30 minutes after the incident began. He told Mr Badugu that he needed to do something to remove ZH from the poolside or he would call the police. Mr Badugu said that ZH's teacher would come with his stuff and get the other staff members to help deal with the situation and asked him not to call the police because he was not hurting himself or being dangerous to anyone around him. Mr Hartland bought a can of coke and tried to persuade ZH to come away from the pool's edge but was unsuccessful. Mr Hartland lost patience with the carer's attempts to encourage ZH away from the pool and called the police. 

Mr Hartland gave the 999 operator the following information: 

"We have a disabled male trying to get into the pool...the carer is trying to stop him, and he is getting aggressive. He is quite a big lad."

In the incident report filed to his employers later that day, Mr Hartland described the situation as "getting worse as ZH started to get angry and edge closer to the pool." No evidence from any other source suggests that ZH was aggressive or angry when Mr Hartland called the police. Mr Hartland later said in evidence he did not mean to give that impression, but he was panicking, having never faced such a situation before. 

Throughout his time at the pool's edge, ZH greatly liked the water. He could not swim but had no fear of the water. His position at the poolside was about midway along the length of the pool at the point where the pool bottom starts to slope downwards towards the 1.97-metre deep end. ZH's behaviour at the pool edge was described as making high-pitched noises, jumping up and down, rocking, and moving, 'stimming' behaviours designed, experienced during enjoyment but also used to self-soothe during sensory overload.  

ZH had experienced not wanting to leave the water or wanting to return to it on occasions at other pools in the past. On at least three occasions, Deputy Head Teacher, Mr Kavanagh, described a linking arms process by which he had physically taken ZH away from the water in the past. ZH's school risk assessment highlighted his liking for water and propensity to jump into swimming pools. The visit to Acton Swimming Pool on 23 September 2008 was part of the process to enable ZH to return to swimming. In January 2007, this resulted in ZH not being permitted to go swimming as: 

"This activity poses an unacceptably high risk because of his reluctance to leave the pool. Once out of the water, he will attempt to jump back into the pool, which carries a risk of injury to himself and others. ZH cannot properly swim, and when he has exited the pool, he becomes upset and attempts to target members of staff and the public."

Arrival of the police

At around 15:30, two police officers, PC Colley and PC McKelvie, arrived at Acton Swimming Pool. PC Colley spoke to Mr Badugu, who told her he was autistic and his name. PC Colley said she "could not stand there talking to the carer whilst someone might injure themselves and possibly die" and that "she would have asked more questions if she had felt there had been time but thought it more important to deal with ZH before talking to the carers any further." PC McKelvie also said she perceived it as a life-and-death situation, as ZH could have fallen in and drowned.  

Entry into the pool

PC McKelvie approached ZH and gently touched ZH on his back. ZH moved closer to the pool, and PC McKelvie thought he would jump in. Both officers took hold of ZH's jacket, but it was not enough to prevent ZH from propelling himself into the water. At 15:36, some six minutes after they had arrived, PC McKelvie sent a radio message to her control saying, "Male is now in the pool. Not in danger of drowning." ZH entered the water, which came up to around chest height. The Officers requested the lifeguards to enter the water to ensure ZH's safety, and they tried encouraging him to shallower water. The lifeguards formed a corden to deter ZH from entering deeper water. At no time did ZH's head go under the water. 

Once ZH was in the pool, evidence from most witnesses showed that he was enjoying himself, splashing the water, and stimming. Mr Hartland tried to move ZH physically to the shallow end, and ZH pushed him away. Five minutes after ZH entered the pool, Mr Hartland instructed the lifeguards to grab him and remove him from the pool. Two lifeguards held ZH by the arms and Mr Hartland by his legs. There were ten members of the public in the pool, and it appears one of them helped in holding ZH. ZH struggled to wriggle free of their grasp. There is disputed evidence as to whether ZH was wriggling or struggling vigorously. There is a further dispute over whether the lifeguards propelled ZH onto the poolside or allowed him to escape his own volition. Throughout this time, PC McKelvie and PC Colley did not seek further advice from ZH's carer or attempt to formulate a plan to remove ZH from the pool safely, nor did the carers suggest a plan. 

Exit from the pool

Once at the shallow end, the police removed ZH from the water. ZH was dropped twice as officers tried to recover him from the water. Once on the poolside, ZH was restrained by five officers on his back. One of the officers later accepted under cross-examination that there was probably an opportunity that ZH would have exited the pool voluntarily. Mc McKelvie accepted that carers could have used the linking arms technique once in the shallow end to recover him from the water. Officers, including now Sergeant Wallace, applied two pairs of handcuffs and leg restraints to ZH before restraint from the five officers ceased. Mr Andrew, one of the swimming instructors, said that ZH lost control of his bowels whilst being physically restrained by officers. 

ZH was then taken out into the car park and loaded into a cage in the back of a police van, still in handcuffs, leg restraints and soaking wet. ZH was very agitated and distressed by this point. Officers initially blocked teachers who arrived from the school to support them from seeing ZH but eventually allowed Ms Harley to speak to ZH in the cage. She managed to calm him so that the handcuffs and leg restraints were removed at about 16:20. The London Ambulance Service examined ZH, and he was permitted to leave with his carers, remaining highly distressed and still in wet clothes. The Claimant suffered lasting psychological trauma and an exacerbation of his epileptic seizures.  

The law

Sir Robert Nelson gave his judgment on the matter in 2011. He was satisfied the provisions of the Mental Capacity Act apply, and the common law defence of necessity had no application. The Claimant was entitled to reasonable adjustments under the Disability Discrimination Act 1995. The changes which amounted to reasonable adjustments for the police to have made were set out in the Amended Particulars of Claim: 

i) Identifying, or at least taking reasonable steps to try and identify, with the Claimant's carers, the best means of communicating with the Claimant before attempting to do so and as the situation developed, then adjusting their usual means of communication accordingly; 

ii) Identifying, or at least taking reasonable steps to try and identify, with the Claimant's carers before approaching him, a plan to best address the situation and then taking reasonable steps to implement that plan; 

iii) Allowing the Claimant opportunities to communicate with his carers and receive reassurance from them, in particular when he had just come out of the pool and when he was shut alone in the police van;

iv) At the outset, allowing the Claimant an opportunity to move away from the poolside at his own pace. He had not entered the water despite standing unrestrained near the edge for at least around 30 minutes prior to the officers' attendance. Following their arrival and excessive intervention he jumped into the water within minutes;

v) Recognising that in the circumstances use of any force on the Claimant was an option of very last resort only to be deployed if all other options had been tried and failed and only then at the minimum level possible and in circumstances that were not duly oppressive for the Claimant;

vi) Seeking, listening to and responding to advice from the Claimant's carers as the situation developed and keeping their approach to it under careful review, for example after it became readily apparent that using force on the Claimant only served to frighten and distress him and escalate the situation further; 

vii) Adopting alternative strategies to afford protection for the Claimant's safety (if and in so far as there was any risk of the same, which is not accepted) for example by the officers present forming a cordon to prevent him from re-entering the pool;

viii) Prioritising the adoption of a calm, controlled and patient approach at all times in their dealings with the Claimant.

Key factual findings

ZH had been standing by the pool for at least 40 minutes between 14:50 and 15:30 when the police arrived. The Court found that PC McKelvie touching ZH on the back was the cause of ZH entering the water. Once in the water, the danger was not substantial, though still present, and reduced once he was in the shallow end. With the lifeguards in the pool, there was no appreciable risk of the Claimant drowning. The Court found that ZH did not lash out at the lifeguards who took hold of him but wriggled uncomfortably due to being touched. ZH was in the pool for not less than 5-10 minutes. The Court was satisfied there was ample opportunity for the police to have sought the advice and assistance of the carers regarding the best way of removing ZH from the pool during the 5-10 minutes he was in the pool. The lifeguards could have formed a cordon around ZH in the shallow end by the steps and allowed the three carers to encourage him to use the steps to exit the pool. 

The Court determined that once the police restrained ZH on the side of the pool, it would not have been practicable to release the restraint without putting ZH at further risk of harm. ZH did not suffer physical injury from the restraint, so the court was satisfied the restraint was necessary and was applied proportionately. However, the restraint was applied for too long, and it was wholly inappropriate for PC Murray to shout loud, clear commands to ZH whilst restrained. Sergeant Wallace also spoke loudly to ZH but changed his tone after Miss Namballa shouted at him that ZH was autistic. The Court did not accept that the police van was the safest place nearby and accepted that other rooms at the leisure centre could have been used. 

Legal findings

Neither Mc McKelvie nor PC Colley could reasonably have believed they acted in ZH's best interests when the matter is objectively judged. Nor were their actions a proportionate response to the likelihood of ZH suffering harm. The common law power of necessity is unavailable where the Mental Capacity Act 2005 applies. Even if it did apply, the defence was not made out in the circumstances. 

The Court was not satisfied that the Defence had established the officers reasonably believed it was in ZH's best interests to remove him from the pool when they did or in the manner they did. Such action should only have been taken after full consultation with the carers. ZH should have been allowed to exit the water by himself. 

The Court did not accept that the police believed restraint was in ZH's best interests. The dangers ZH faced if he were to return to the pool were substantially less than the application of restraint. The actions of the police were not proportionate to the circumstances. 

The Defence conceded that ZH was falsely imprisoned when he was restrained by officers on the poolside. There was no greater risk of ZH running free from a warm room in the leisure centre than from the back of a police van. 

The Court was satisfied that the reasonable adjustments set out by the Claimant in the Amended Particulars of Claim were reasonable and applicable. The Court was satisfied that the adjustments may have led to a better outcome than the course of action the police took. The Claimant was successful in their claim under the Disability Discrimination Act 1995. 

The claim under Article 3 of the HRA was not made out. The claims under Articles 5 and 8 were successful. 

Key comments

The Court said that the lifeguards properly dealt with the incident. The Court levied criticism against the pool manager Mr Hartland for misdescribing ZH's behaviour as "aggressive" when that was not the case. In Sir Robert Nelson's view, the case "highlights the need for there to be an awareness of the disability of autism within the public services." 

Damages

The claimant was awarded £10,000 for the PTSD caused, £12,500 for the exacerbation of his epilepsy, £5,000 for the breach of the Disability Discrimination Act 1998, and £500 for the loss of liberty and £250 for the pain and distress caused by the assault. The Claimant thereby recovered a total of £28,250 in damages. 

 

References

ZH v The Commissioner of Police for the Metropolis [2012] EWHC 604 (QB). Available at https://caselaw.nationalarchives.gov.uk/ewhc/qb/2012/604 accessed 14 July 2023. 

 

Citation: Jacklin, D. 2023. ZH v The Commissioner of Police for the Metropolis [2012] EWHC 604 (QB). Water Incident Research Hub, 14 July.