2013 02 Incapacity

Friday 1 March 2013

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The Commissioner of Police for the Metropolis v ZH (by his litigation friend, GH) and (1) Liberty (2) Equality and Human Rights Commission (Interveners) [2013] EWCA Civ 69 (Master of the Rolls, Richards and Black LJJ): the Court of Appeal upheld findings that the police were liable for assault, battery, false imprisonment, failure to make reasonable adjustments under the Disability Discrimination Act 1995 and breaches of Article 3, 5 and 8 ECHR, arising out of their attendance at a swimming pool where ZH, a 16 year old boy with autism and a learning disability, was standing near the water, fixated by it. The police failed to consult with his carer and their handling of the situation caused him to jump into the water. He was restrained and placed in handcuffs and leg restraints, and detained in the back of a police van. The police defended their actions relying on ss 5 and 6 Mental Capacity Act 2005 (MCA 2005), contending that they reasonably believed that they were acting in ZH’s best interests and that their actions were a proportionate response to the likelihood of ZH suffering harm. It was argued on appeal that the rejection of this defence failed to allow a reasonable degree of operational discretion to the police, making it impossible to conduct practical policing in an emergency situation involving a person lacking mental capacity. Rejecting that argument, the Court of Appeal observed that it was a striking feature of the defences under ss 5 and 6 MCA 2005 that they were pervaded by the concepts of reasonableness, practicability and appropriateness; strict liability had no place there. However on the facts of this case the defences could not be relied on.

Note: The case shows the importance of consulting and taking into account the views of the carer of a person lacking mental capacity before taking action, where it is “practicable and appropriate” to do so - a key feature of best interests decision-making (s 4(7) MCA 2005). It was held that, had the police consulted ZH’s carer, it was likely ZH would not have jumped into the pool and would not have been restrained. However, as the court acknowledged, in what is reasonably believed to be an emergency (which was not the case here), it may not be practicable and appropriate to consult before acting. Click here for the judgment.

A Local Authority v K (by the Official Solicitor), Mrs K and Mr K and A NHS Trust [2013] EWHC 242 (COP) (Cobb J): K is a 21-year old woman who has Down’s Syndrome and a mild/moderate learning disability. She is the daughter of Mr and Mrs K who care for her. The local authority brought proceedings for a best interests determination in relation to contraception and serialisation. When proceedings were issued in July 2012 the local authority applied for an injunction restraining Mr and Mrs K from removing K from the jurisdiction as it was concerned that they intended to take K abroad to seek assistance with contraception and sterilisation. At an interim hearing the parents gave undertakings not to remove her. By the date of the hearing, all parties agreed that it was not in K’s best interests to receive any form of contraception at present as she is not currently sexually active and is well supervised. The local authority pursued its application for a declaration that it was not in K’s best interests for her to be the subject of a sterilisation procedure. The Judge considered the medical evidence and concluded that K lacked capacity to understand and weight the immediate medical issues surround contraceptive treatment. He held that sterilisation would be a disproportionate and not the least restrictive step to achieve contraception for K in the future and that risk management – of any potential sexual activity- would e less restrictive. He made a declaration to that effect. He reminded medical and legal practitioners that a decision regarding non-therapeutic sterilisation, where a person lacked capacity, is so serious that it is for the Court of Protection to make. He set out a checklist for the conduct of proceedings. Click here for the judgment.

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