and and (1) LIBERTY (2) EQUALITY AND HUMAN RIGHTS COMMISSION INTERVENERS LIBERTY S SUBMISSIONS

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1 IN THE COURT OF APPEAL (ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT) BETWEEN: Z.H. (A Protected Party by G.H., his litigation friend) Claimant/Respondent and THE COMMISSIONER OF POLICE OF THE METROPOLIS Defendant/Appellant and (1) LIBERTY (2) EQUALITY AND HUMAN RIGHTS COMMISSION INTERVENERS LIBERTY S SUBMISSIONS References to the 2 hearing bundles are denoted [Vol/Tab/Page] 1. Introduction and Summary 1. Liberty has been granted permission to intervene by way of written and oral (limited to one hour) submissions, by an order of the Master of the Rolls dated 20 December Liberty considers that the issues raised by this appeal are of considerable importance because of their potential impact on the rights of those who lack capacity and/or who are disabled. 2. Liberty s submissions are confined to: 1

2 a. The Mental Capacity Act 2005 and the assessment of best interests ; b. Article 5, ECHR (Sch 1, Human Rights Act 1998) and the meaning of deprivation of liberty ; c. Article 3 ECHR (Sch 1, Human Rights Act 1998) and the meaning of inhuman or degrading treatment and the significance of, in particular, age and disability in determining whether any treatment meets the necessary threshold; d. The Disability Discrimination Act 1995 and the concept of reasonable adjustments. 3. Liberty does not make any submissions on the facts of this case save for the purposes of illustrating the legal submissions it makes. 4. In very short summary, Liberty submits that: a. The Mental Capacity Act 2005 contains an exclusive code; it does not permit of any margin of appreciation or discretionary area of judgment and it must be read strictly. A failure to consult a carer will be relevant to the best interests test, as well as the necessity and proportionality assessments. Police officers carrying out acts in relation to persons who lack (or who are reasonably believed to lack) capacity must be aware of the guidance in the statutory Code of Practice before doing any act in relation to a person who lacks capacity (or who is believed to) and a failure to have regard to the Code will be relevant in determining the reasonableness of any belief; b. Article 5 regulates deprivations of liberty and the paradigm case will be a case of close confinement in situations such as a prison cell. In such cases, there is no room for argument as to the applicability of Article 5. The border-line cases (control orders; kettling; residence decisions for those who lack capacity) are of no relevance to the facts in this case; c. In determining whether any treatment reaches the threshold of inhuman or degrading treatment for Article 3, protected characteristics such as age and disability will ordinarily be relevant; d. The reasonable adjustments duties in the Disability Discrimination Act 1995 (and the corresponding duties under the Equality Act 2010) as they 2

3 apply on the facts of this case, are anticipatory and impose proactive and continuing obligations. The triggering of the duty does not depend upon knowledge of the circumstances of a particular disabled person or foreseeability, and nor is the duty triggered only where there is the application of a specific practice to a particular disabled person. Compliance with the duty must be objectively assessed. The Act does not allow for any margin of appreciation or discretionary area of judgment or operational discretion; instead, the measure for determining compliance is reasonableness ; e. Whilst there is no necessary coincidence between the Mental Capacity Act 2005 and the Disability Discrimination Act 1995 (though there will be in some cases), nor is there any conflict and compliance with one, in particular circumstances, may promote compliance with the other. In both cases, the knowledge of police officers who are engaged in interacting with people who are reasonably believed to lack capacity and/or disabled people will be critical and to this end training (including on the provisions of the relevant statutory Codes of Practice) will inevitably be required. 2. Mental Capacity Act 2005 (a) The relevant provisions of the Act 5. The Mental Capacity Act 2005 (MCA) sanctions certain acts, including restraint (in certain narrowly prescribed circumstances), where they are done in the best interests of a person lacking capacity (or where the doer of the act reasonably believes that such person lacks capacity). The relevant parts of the MCA are as follows (emphasis added): Part 1 Part 1 Persons who Lack Capacity The principles 1 The principles (1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable 3

4 steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action... 4 Best interests (1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of (a) the person's age or appearance, or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (6) He must consider, so far as is reasonably ascertainable (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of (a) anyone named by the person as someone to be consulted on the matter in 4

5 question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6). (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. (9) In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned. (11) Relevant circumstances are those (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant. 6. The MCA regulates acts (including restraint) done in connection with the care and treatment of a person who lacks (or who is reasonably believed to lack) capacity (sections 5 and 6). Section 5(1), MCA provides that a person ( D ) will not incur any liability 1 for an act done in connection with the care of another person ( P ) if (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P's best interests for the act to be done. Where the act done is intended to restrain P, the exclusion in respect of liability under section 5(1) will not apply unless two further conditions are satisfied, namely that D reasonably believes that it is necessary to do the act in order to prevent harm to P and that the act is a proportionate response to (a) the likelihood of P's suffering harm, and (b) the 1 D does not incur any liability in relation to the act that he would not have incurred if P (a) had had capacity to consent in relation to the matter, and (b) had consented to D's doing the act ; section 5(2). 5

6 seriousness of that harm (section 6(1)-(3), MCA). D restrains P, for these purposes, if he (a) uses, or threatens to use, force to secure the doing of an act which P resists, or (b) restricts P's liberty of movement, whether or not P resists (section 6(4), MCA). Further, section 6(5), MCA confirms that there is no protection under the MCA for acts that result in someone being deprived of their liberty within the meaning of Article 5, ECHR Thus, even where the best interests requirement is satisfied, restrictions or restraints on a person s liberty are not tolerated save in limited closely prescribed circumstances and not at all where they result in someone being deprived of their liberty within the meaning of Article 5, ECHR. Since these provisions sanction acts which would otherwise be unlawful and affect the freedoms of those subject to them, they must be construed strictly (F Bennion, Bennion on Statutory Interpretation (2008), Section 273). (b) Best Interests 8. As is apparent from the outline above, in the circumstances of ZH s case, the acts done by the police officers to the extent (only) that they were directed at the care of ZH (ie not other persons) which would otherwise attract liability in assault, false imprisonment etc will not do so, if, a. The police officers reasonably believed that ZH materially 3 lacked capacity (having taken reasonable steps to establish whether that was so); b. the police officers reasonably believed that those acts were done in ZH s best interests and, in the case of the restraint, that the officers believed that it was necessary to prevent harm to ZH and it was a proportionate response; and c. those acts did not amount to a deprivation of liberty under Article 5, ECHR. Article 5 is addressed separately below. 9. The Mental Capacity Act 2005 Code of Practice (2007) provides relevant guidance on the issue of best interests. The Code of Practice has been promulgated under section 42, MCA which provides that: Where it appears to a court conducting any 2 There have been amendments to the MCA brought into force since the events in issue in this Appeal (sections 4A and B) sanctioning deprivations of liberty in some cases but they are of no relevance to the issues in this Appeal. 3 That is, in relation to the matter in question. 6

7 .civil proceedings that (a) a provision of a code, or (b) a failure to comply with a code, is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question. The Code provides guidance which a person to public authority should depart from only if it has cogent reasons for doing so (Code of Practice, p1). Where a public authority does not follow the Code, it must spell out its reasons for not doing so clearly, logically and convincingly (R (Munjaz) v. Mersey Care NHS Trust [2006] 2 AC 148; see in particular Lord Bingham at and Lord Hope at 69 4 ). 10. Certain categories of people are legally required to have regard to relevant guidance in the Code of Practice: That means that they must be aware of the Code of Practice when acting or making decisions on behalf of someone who lacks capacity to make a decision for themselves, and they should be able to explain how they have had regard to the Code when acting or making decisions (Code of Practice, p2 (emphasis added)). These include persons acting in relation to a person who lacks capacity and is doing so in.. a professional capacity (section 42(4)(e), MCA). This would cover professionals who may occasionally be involved in the care of people who lack capacity to make the decision in question, such as ambulance crew, housing workers, or police officers (Code of Practice, p2). 11. Whilst the MCA does not in terms require police officers in situations as pertained in ZH s case to be aware of the MCA, it does require them to have regard to the Code of Practice (which contains the best interests criteria and guidance on them and the MCA generally) of which they must be aware. This is important since the learned judge below concluded that the Appellant/Defendant could as a matter of principle establish that both the best interests criteria and the conditions for lawful restraint could be met without the officers being aware of the MCA at all [1/3/33-34, 40-41]. 4 See also on the status of a statutory code or guidance R v Islington LBC ex p. Rixon (1996) 1 CCLR 119, 123 (any departure from statutory guidance must be for good reason, articulated in the course of some identifiable decision making process ) and R v Tameside MBC ex p. J [2000] 1 FLR 942, 951 (guidance issued under s.7 of the Local Authority Social services Act 1970 a helpful aid to the way the legislation is intended to be implemented, and it should not be departed from without good reason ); see also B v. London Borough of Lewisham [2008] EWHC 738, paras 45-46, concerning failure by a local authority to follow guidance relating to special guardianship ( [a]s the local authority concedes, the first sentence of para 65 (see above) imposes an obligation on them to have regard to the fostering allowance that would have been payable... Just looking for a moment at the obligation to have regard to the fostering allowances, it would, in my view, be unlikely that those responsible for the Guidance intended that local authorities would go through the motions of reminding themselves of their fostering rates only to abandon them completely in all their subsequent considerations and to fasten instead on a quite different and much more stringent financial regime. ). 7

8 In so concluding, the learned judge recorded the example provided by counsel for the Appellant/Defendant, namely of a neighbour finding a confused elderly man wandering in his pyjamas in the road [who] takes him forcibly by the arm to return him to his home and carer [1/3/33 38). This is not a helpful or apt illustration since the distinction between the neighbour and the police officers in ZH s case is as provided for in the MCA: the neighbour (unlike the police officers) is not required to be aware of, or have regard to, the Code of Practice (and therefore the provisions of the Act) and this would be relevant to the reasonableness of any belief as to best interests (see too, the argument in the Defendant s Skeleton Argument [2/1/232, 44). 12. As to the contact between the police officers and ZH it is important to note the stage at which the officers formed the belief that ZH lacked capacity for identifying when the best interests assessment was required. The Appellant/Defendant accepts that they believed that ZH lacked capacity (the first condition for the application of section 5, MCA). The officers appear to have correctly assumed that ZH lacked capacity and was disabled from the fact that (i) the radio called described ZH as disabled ; (ii) he had a carer with him; (iii) he was autistic ; and (iv) it quickly became apparent that he was unable to communicate with officers (Defence [1/5/75-6, 4(i)-(vi)]). This is borne out by the averments in paragraph 5(i) of the Defence [1/5/78). This assessment of capacity appears to have been concluded before the approach to ZH (talking and touching) (see judgment, [1/3/49, 116). Accordingly, the determination as to capacity having been made by the officers (apparently on the basis of a reasonable belief) before any contact with ZH, in deciding whether to act in a way which would otherwise attract liability, the police officers were required to first form the reasonable belief that the doing of the act would be in ZH s best interests (section 5(1), MCA). Further, liability for any such act would only would be avoided if the act was done in connection with the care of ZH (section 5(1), MCA). 13. As to whether the police officers formed the reasonable belief that doing the acts for which they were found liable by the judge below (touching, restraint etc), were in the best interests of ZH, Liberty addresses three issues: (i) the relevance of the Code of Practice; (ii) the discretionary area of judgment contended for by the Appellant/Defendant and (iii) necessity and proportionality. 8

9 (i) Code of Practice 14. As referred to above, the MCA requires that the officers concerned had regard to the Code of Practice. It appears that some or all of the officers were unaware of the MCA (and therefore necessarily the Code) (see discussion in the judgment at [1/3/33, 38-40]). As to the relevant provisions of the Code of Practice that would have assisted the officers in addressing the best interests issue, these are found at In answering the question whether the officers reasonably believed (to be objectively assessed 5 ) that they were acting in ZH s best interests, account must be taken of the fact that the officers were (apparently) not aware of relevant guidance in the Code of Practice and so could not have had regard to its contents, contrary to their obligations in law. In such circumstances, absent a cogent explanation for the failure, the presumption must be that any belief was not reasonable. 15. The learned judge considered that the officers had failed to form a reasonable belief that they were acting in ZH s best interests (when the matter is judged objectively as is required) because they had not consulted ZH s carers as to what would be in ZH s best interests, though it was practicable and appropriate to do so (section 4(7)) (see, judgment [1/3/50, 120, 1/3/51, 127]). As the Code of Practice makes clear, the duty to secure consultation where practicable and appropriate, is on the police (not on the carers). The Code of Practice advises that Decision-makers must show they have thought carefully about who to speak to They must be able to explain why they did not speak to a particular person ( 5.51). It appears that the Appellants/Defendants (at least in part) attribute responsibility for the absence of consultation to the failure by the carers to initiate contact with the police officers (see, Appellant s/defendant s Defence [1/5/81, 16(v), Defendant s Further Information [1/8/92, 1 and 1/8/94, 3(e)] and Skeleton Argument [2/1/230, 35, 2/1/234, 51]). The fact that the officers apparently had no regard to the relevant provisions of the Code of Practice no doubt contributed to the officers misunderstanding as to their role. 16. It is submitted, then, that the material absence of regard to the Code (contrary to the requirements of the MCA) must be taken into account in deciding whether any belief by the officers was reasonable. The Code does not appear to have been referred to 5 See, section 4 and Code of Practice,

10 below and its importance not recognized but its impact is significant and supportive of the learned judge s ultimate decision on the best interests issue. (ii) Operational discretion 17. Whether the conditions in section 5 (including in relation to best interests ) are satisfied, must be judged strictly and objectively. 18. Best interests mean just that and they are to be adjudged by reference to section 4, MCA only. There is a not a range of options available to an officer or scope for operational discretion, as the Appellant/Defendant contends (see, Skeleton Argument [2/1/216/, 10; 2/1/219 15; 2/1/221, 20(ii)]). Nor is the application of section 5 to be assessed by reference to the reasonableness or rationality of the act done (cf Appellant s Skeleton [2/1/219, 15]). Whilst the doer of the act in issue must reasonably believe that the person does lack capacity and that they are acting in that person s best interests, the task of the doer of the act is nevertheless to find the best interests decision, not merely one amongst an acceptable range, and there must be objective reasons for that decision (Code of Practice, 5.61). (iii) Necessity and proportionality 19. As to restraint, the absence of consultation with ZH s carers and the failure to have regard to the Code of Practice are both relevant in determining whether the officers reasonably believed that it was necessary to restrain ZH and (objectively) whether it was a proportionate response (assuming first that it was done in response to the likelihood of ZH suffering harm), for the purposes of section 6(3), MCA (and see, section 1(6), MCA). This is because less restrictive options may not (as here) be identified without such consultation or without regard to the Code of Practice ( 6.48). Accordingly, the observations above apply. 20. Further, the Code of Practice specifically gives general guidance on necessity and proportionality which will inform the reasonableness of any asserted belief as well as determining the proportionality of any response ( ). It seems plain that the officers did not have regard to that guidance (because of an absence of knowledge of the same). 10

11 (C) Conclusion: MCA 21. In conclusion, the police officers were under a duty to have regard to the Code of Practice and their failure to do so is significant in determining the reasonableness of their belief. There is no operational discretion available to police officers (or anyone else) in applying the best interests test under the MCA and the absence of consultation with carers (a duty that falls on the doer of the act in issue) is relevant to a decision on best interests and to necessity and proportionality when restraint is used. 3. The Convention Rights (a) Article In determining whether the threshold for inhuman and degrading treatment in Article 3 is met, regard must be had to the age and any disabilities of the person to whom the impugned treatment is being meted out. To that extent what constitutes such treatment involves a relative assessment. 23. As the European Court of Human Rights (ECtHR) said in Price v United Kingdom (2002) 34 EHRR 1285, at 1292, para 24: The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. 24. The applicant in Price was four-limb-deficient (by reason of thalidomide) with numerous health problems including defective kidneys. She had been committed to prison for contempt of court in the course of civil proceedings. A breach of Article 3 was established in consequence of the conditions in which she was detained. The Court observed that (at 1294, para 30): There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable 11

12 to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article As was observed by Judge Greve (agreeing that there had been a violation of Article 3): It is obvious that restraining any non-disabled person to the applicant s level of ability to move and assist herself, for even a limited period of time, would amount to inhuman and degrading treatment possibly torture. In a civilised country like the United Kingdom, society considers it not only appropriate but a basic humane concern to try to ameliorate and compensate for the disabilities faced by a person in the applicant s situation. In my opinion, these compensatory measures come to form part of the disabled person s bodily integrity. 26. Regard should also be had to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) (to which both the EU in its own right (Council Decision 2010/48/CE) and the United Kingdom is a party). The general principles underpinning the UNCRPD are described as respect for inherent dignity and individual autonomy (Article 3(a)). Its recitals recognise the need to promote and protect the human rights of all persons with disabilities, including those who require more intensive support (recital (j)) so, acknowledging the impact of disability on the enjoyment of other rights. In that context, it prohibits inhuman or degrading treatment or punishment (Article 15). 27. In all the circumstances, the use of handcuffs (separately and) with the other aspects of the restraint to which ZH was made subject, must be viewed as constituting inhuman and degrading treatment. 28. As to Article 3 generally, the facts in this case (which are apparently not disputed in so far as they pertain to the Article 3 claim) speak for themselves. Liberty submits that the restraint of ZH, a young, disabled man, and his detention in the cage of the police van in the condition that he was in (wet, having defecated, distressed, crying) constitutes treatment that reaches the threshold of Article 3. 12

13 (b) Article As observed above, the MCA (at material times) did not sanction a deprivation of liberty within the meaning of Article 5. The question arises in this case as to whether the restraint of ZH, including in the cage of the police van, constitutes detention for these purposes. 30. As to the general principles, the important case of Cheshire West and Cheshire Council v P (by his litigation friend the Official Solicitor) [2011] EWCA Civ 1257; [2012] PTSR 1447 establishes a number of principles relevant to the deprivation of liberty and its relationship with Article 5 in the case of a person who lacks capacity. Permission to appeal against the decision of the Court of Appeal was granted by the Supreme Court on 10 July (This case is not referred to in the parties Skeleton Arguments). 31. In P, in essence, the Court of Appeal concluded that in determining whether, in the case of an incapacitated person, any treatment constitutes a deprivation of liberty for Article 5, a. it was legitimate to have regard to both the objective reason behind the particular steps taken and also to the objective purpose or aim of the treatment in question, though subjective motives or intentions are generally not relevant ( 76); b. it was also relevant to assess the relative normality or otherwise of the situation but that assessment had to take account of the particular capabilities of the person concerned. In cases involving a person with significant physical and learning disabilities, the relevant comparison was with a person of the same age and same characteristics and capabilities of the person in question ( 38 et seq). 32. In so concluding, the Court of Appeal relied on, inter alia, Austin and A or v Commissioner of Police of the Metropolis [2009] UKHL 5; [2009] 1 AC 564 (referred to by both parties in this Appeal). Liberty submits, respectfully, that the approach of the Court of Appeal in P is wrong. It has the effect of infantilising disabled people (those who lack capacity) by the comparison exercise (see, eg, 42, 56) and permitting purportedly benign interferences with their dignity, equality and autonomy in circumstances where that would not be permissible (without the Article 5 safeguards) in the case of non-disabled people. This is contrary to the modern human rights based 13

14 approach to disability (and capacity), exemplified by the MCA (which seeks to promote autonomy for those who lack capacity), the DDA (which requires equality) and international and regional human rights instruments addressing disability. The Court of Appeal s approach is reminiscent of the welfare-ist approach to disability (and capacity) and undermines the equality and human rights of disabled people. 33. However, even having regard to Cheshire West, Austin and A or v Commissioner of Police of the Metropolis [2009] UKHL 5; [2009] 1 AC 564 (and then in the ECtHR as Austin v United Kingdom (Applications No.s 40713/09 and 41008/09) and Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] 1 AC 385 (referred to by the Court of Appeal in P and the Appellant/Defendant in this Appeal) the facts found by the judge in ZH s case would amount to a deprivation of liberty within the meaning of Article In determining whether any restriction constitutes a deprivation of liberty, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question The difference between deprivation of and restriction upon liberty is none the less merely one of degree or intensity ; Guzzardi v Italy (1980) 3 EHRR 333, paras 92 93). Accordingly, account must be taken of an individual s whole situation (Secretary of State for the Home Department v JJ [2007] UKHL 45; [2008] 1 AC 385, 16, per Lord Bingham). The whole situation includes the reason (or purpose) (as opposed to subjective motive or intention) for which any person is treated as they are (Cheshire West, 76). Further, in determining whether there is a deprivation of liberty by the imposition of measures in the case of a particular person, the appropriate comparison in the case of a severely disabled person, must be with a person who has those same disabilities in other words the court must ask the question what would be normal for that person for the purposes of determining whether any measure deprives them of liberty (Cheshire West, 86 et seq). 35. In ZH s case, he was restrained in circumstances where the imposition of those restraints did not compare to normality for a person with his disabilities; it deprived him of all movement; it in part involved incarceration in a cage in a police van; his 14

15 detention was effected by police officers; it was intense in nature and lasted for a significant period of time [1/3/55, 145] and the purpose (at least in part to protect ZH s safety) could have been met by alternative means (the relative normality of a warm room [1/3/55, 111]). 36. Each of the cases referred to above are distinguishable on their facts (Austin kettling ; JJ control orders ; Cheshire West - order requiring profoundly disabled man to reside at a particular home 6 ). All of them are border-line cases (Gizzardi, 59; Austin HL, 18, per Lord Hope; Cheshire West, 32 and 99(v); JJ, 17, per Lord Bingham, 39, per Lord Hoffman). Austin, heavily relied upon by the Appellant/Defendant, was based on specific and exceptional facts (ECtHR, 68). 37. ZH s case, conversely, is a paradigm case: tight restraint, under the auspices of police officers, in part in a cage in a police van. As has been repeatedly held: In the paradigm case of close confinement in a prison cell, there is no room for argument (Austin, HL 18, per Lord Hope; 41, per Lord Walker; 52, 56, 63, Lord Neuberger; Austin, ECtHR, 59). See, the stop and search case of Gillan and Quinton v United Kingdom (2010) (Application no. 4158/05) (though not required to finally decide the issue in the event): The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 ( 57). 38. There is no need, or room, for an Austin, JJ, Cheshire West analysis in a case such as this. 39. Liberty respectfully submits that considerable care needs to be taken to ensure that principles developed for assisting in border-line cases are not adopted with the effect of narrowing the protection that hitherto has been un-controversially granted by Article 5 or, put otherwise, to impose a further hurdle in cases of true 6 That would not, in any event, have been unlawful under Article 5 but, if amounting to a deprivation of liberty, would have entitled him to the procedural safeguards under Article 5(4); 4). 15

16 imprisonment. 4. Disability Discrimination Act The Disability Discrimination Act 1995 (DDA) outlawed (until its repeal by the Equality Act 2010) discrimination by public authorities in the exercising of public functions (section 21B). 41. Discrimination for these purposes, includes a failure to comply with a duty to make reasonable adjustments in circumstances where the effect of that failure is to make it impossible or unreasonably difficult for the disabled person to receive any benefit that is or may be conferred, or (ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority; and (b) it cannot show that its failure to comply with that duty is justified (section 21D(2)). A failure to comply with the duty is justified if, inter alia, (a) in the opinion of the public authority, one or more specified conditions are satisfied; and (b) it is reasonable, in all the circumstances of the case, for it to hold that opinion. The conditions include that the non-compliance with the duty is necessary in order not to endanger the health or safety of any person (which may include that of the disabled person). Further, a failure to comply with a duty is justified if the acts of the public authority which give rise to the failure are a proportionate means of achieving a legitimate aim (section 21D(3)-(5)). 42. A duty to make reasonable adjustments is owed in relevant circumstances to disabled persons (section 21E(1)-(2)). The duty is, then, a duty to disabled people at large (Code of Practice, ); that is, it is an anticipatory duty (as it is usually described). It does not depend upon knowledge of a particular disabled person. It is a proactive duty; accordingly, public authorities are required to take steps in advance of the use of their powers to accommodate their application to disabled persons. This can be contrasted with the reasonable adjustments duty as it applies elsewhere in the DDA when it is reactive; that is, it applies only in respect of a particular disabled person and only when the duty bearer has knowledge of that disabled person and 7 Code of Practice Rights of Access: Services to the Public, Public Authority functions, Private Clubs and Premises (2006) DRC The Code here refers to service providers but it covers public authorities exercising public functions too; see,

17 their disability (see, for example, section 4A, DDA). The duty as it applies to public authorities is much wider and the distinction between it and duties elsewhere in the DDA must be borne in mind having regard to the way in which the Appellant/Defendant argues his case, as is referred to further below. 43. Disability, for the purposes of determining whether persons are disabled for the purposes of the DDA, is defined by section 1 ( a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities ) and Schedule 1, DDA. For the purposes of this Appeal, it is sufficient to note that a person may have a disability for the purposes of the DDA but not lack capacity within the meaning of the MCA (see, section 2, MCA), and, conversely, that a person may lack capacity but not have a disability for the purposes of the DDA (as where, for example, the lack of capacity is caused by a temporary impairment). In the case of ZH, it is plain (and not disputed) that he both lacks capacity and is disabled for the purposes of the MCA and the DDA. 44. The duty to make reasonable adjustments as it applies to the facts of ZH s case is as follows: (1) Subsection (2) applies where a public authority has a practice, policy or procedure which makes it (a) impossible or unreasonably difficult for disabled persons to receive any benefit that is or may be conferred, or (b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected, by the carrying-out of a function by the authority. (2) It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect. 45. A practice, policy or procedure is not specifically defined for these purposes in the DDA but for other unlawful acts elsewhere in the DDA, it is defined as including a provision or criterion and any arrangements (section 21A(6)(b); s18d((2)) and those expressions will be equally applicable here. The concept, then, in essence, 17

18 covers all the activities of public authorities. As the applicable Code of Practice advises: When a [public authority] is providing services to its customers, it will have established a particular way of doing this. Its practices (including policies and procedures) may be set out formally, or may have become established informally or through custom. The terms practice, policy or procedure cover: what a [public authority] actually does (its practice) what a [public authority] intends to do (its policy); and how a [public authority] plans to go about it (its procedure). The three terms overlap, and it is not always sensible to treat them as separate concepts. ( Code of Practice Rights of Access: Services to the Public, Public Authority functions, Private Clubs and Premises (2006) DRC, 7.7 read with (issued under section 53A, DDA and the effect of which is as with the MCA Code of Practice referred to above)) 46. The prohibitions against discrimination, and the duty to make reasonable adjustments, applicable to the exercise of public functions were introduced by the DDA 2005 (amending the DDA 1995) which also introduced a Disability Equality Duty requiring public authorities to have due regard to the need to achieve certain specific equality goals so as to eliminate discrimination that is unlawful under the DDA and to take steps to take account of disabled persons disabilities even where that involves treating disabled persons more favourably than other persons (section 49A(1), DDA). The amendments required a significant shift in thinking and practice by public authorities (analogous to that consequential upon the introduction to the Race Relations Act 1976 of similar amendments so as to give effect to the recommendations in the Stephen Lawrence Inquiry Report, 8 the model for which was followed in the DDA by these amendments). It was anticipated that this shift would be effected by, inter alia, the training of those carrying out such functions (Code of Practice, 6.12). 47. The duty requires reasonable adjustments. The questions whether the duty arises and whether it is discharged are to be answered objectively (British Gas Services Ltd v 8 Report of an Inquiry by Sir William McPherson of Cluny (1999) Cmnd

19 McCaull [2001] IRLR 60; Royal Bank of Scotland v Ashton [2011] ICR 632, 24). Reasonableness is the only measure (objectively assessed) to be adopted in assessing whether the duty has been discharged. 48. As to the operation of the duty and its discharge, it is respectfully submitted that the submissions of the Appellant/Defendant in this appeal disclose a serious misunderstanding of the duty as it applies in the circumstances under consideration in this Appeal for a number of reasons: a. There is no requirement of foreseeability (see, Appellant s/defendant s Skeleton Argument, [2/1/235, 53]). The mental processes of the police officers are not relevant to whether the duty arises and whether it is discharged (they are only relevant to certain aspects of the justification defence assuming first that there has been a failure to comply with the duty). The question whether the offers foresaw the use of restraint (or indeed the contact with ZH in its entirety) is irrelevant; British Gas Services Ltd v McCaull [2001] IRLR 60; Royal Bank of Scotland v Ashton [2011] ICR 632, 24). It is precisely because a public authority may not foresee the need for the exercise of a function, as this case illustrates, that the duty in this sphere is anticipatory in nature. See, Code of Practice Rights of Access: Services to the Public, Public Authority functions, Private Clubs and Premises (2006) DRC, b. The duty does not arise only where a function is being exercised. Contrary to the submissions of the Appellant/Defendant (see, Appellant s/defendant s Skeleton Argument, [2/1/235, 54; 2/1/236, 58]), the duty is not dependent upon the application of a practice in a particular case. The duty is anticipatory : See, Code of Practice Rights of Access: Services to the Public, Public Authority functions, Private Clubs and Premises (2006) DRC, On the findings of fact in this case, this means that the Appellant/Defendant should have in place arrangements for securing the protection of disabled persons at risk which accommodate those disabilities. Those arrangements will vary according to the disability in issue. However, in the case of autism, the arrangements would obviously (at an absolute minimum) reflect the key characteristics of autism, namely the particular communication and social impairments consequent upon the 19

20 condition (and that requires no special knowledge). Nor is autism so unusual that it would be unreasonable for a public authority to make adjustments in advance, so assuming its presence amongst the general public (somewhere over 500,000 people have autism in the United Kingdom). It is, of course, no excuse (if this be so) that the police officers were not aware of the incidence of autism, its characteristics and the modifications required in practice to accommodate it. c. Contrary to the submissions of the Appellant/Defendant (see, Appellant s/defendant s Skeleton Argument, [2/1/235, 59; 2/1/239, 65]), the duty is a proactive duty (see, section 21E(1) and (2), DDA; See, Code of Practice Rights of Access: Services to the Public, Public Authority functions, Private Clubs and Premises (2006) DRC, 6.16). d. Contrary to the submissions of the Appellant/Defendant (see, Appellant s/defendant s Skeleton Argument, [2/1/238, 62]), the duty is a continuing one, as is made explicit by the Code of Practice ( 6.22). e. Contrary to the submissions of the Appellant/Defendant (see, Appellant s/defendant s Skeleton Argument, [2/1/238, 63]), there is a general duty to make reasonable adjustments imposed on public authorities (section 21E and see, section 49A, DDA). f. There is no operational discretion available to a public authority in determining whether, or what, adjustments should be made (see, Appellant s/defendant s Skeleton Argument, [2/1/219, 15]). The test for compliance is reasonableness judged objectively, not subjectively and without any additional margin for police officers. 49. The learned judge concluded that the absence of consultation was relevant to the decision that the police officers had failed to take reasonable steps [1/3/53, 134-5]. The learned judge found that the duty to consult the carers arose from the outset [ 135]. This is a finding that such would have been a reasonable step in ZH s case for the purpose of discharging the duty. That was a finding open to the learned judge since consultation concerning specific needs may well be required if the duty is to be properly discharged. Whilst there is no discrete or separate duty to consult (cf MCA - as opposed to the taking of reasonable steps which may in a particular case require consultation, as the learned judge found in the instant case); it will 20

21 always be good practice to consult and it will potentially jeopardise the [Defendant s] legal position if he does not do so- because the [Defendant] cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint that he has not made reasonable adjustments (Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664, 72). 50. For completeness, the DDA 9 has now been repealed and its provisions absorbed into the Equality Act Though the reasonable adjustments duty is differently constructed (and there are fewer opportunities to justify a failure to comply), the effect of the reasonable adjustments duty as it applies to the facts in this Appeal is the same under the Equality Act 2010 as under the DDA (sections 20, 29(7) and Sch 2). A new Code of Practice has been issued addressing the reasonable adjustments duty as it applies to public authorities ( Services, public functions and associations Statutory Code of Practice (2011) EHRC). The Code in large part codifies the case law under the DDA and for that reason Liberty may refer to it in their oral submissions (in particular, ; Ch 7). 5. MCA/DDA 51. As mentioned above, there is no necessary coincidence between the application of the MCA and the DDA (now the Equality Act 2010). 52. However, both seek to confer disability rights on disabled people and the likelihood of compliance with both will be increased by consultation with those who are best able to identify the best interests and needs of disabled people, and (importantly given the comments of the Appellant/Defendant at 68 of his Skeleton Argument [2/1/237-8]) by specialist training on the needs of disabled people and the statutory guidance. KARON MONAGHAN QC 6 January Save for Northern Ireland. 21