The police are facing an "unrealistic and unworkable" situation in the wake of a decision to award £28,250 damages to a severely autistic epileptic teenager who was restrained following an incident at a public swimming pool, appeal judges were told today.
File image: Swimming baths
Metropolitan Police lawyers argued the High Court ruling would lead to officers being advised to be "wary and defensive" when attending emergencies involving those suffering from a disability.
The case arose after "ZH" jumped into Acton Baths, west London, and was lifted out and put in handcuffs and leg restraints and held in the back of a police van before being handed over to carers.
ZH sued the Commissioner of Police through his father, GH, who told the High Court that, after the incident, his son had changed from a "loveable little kid into an upset child" who did not want to bathe, shower or go into water.
ZH, who suffers from learning disabilities and cannot be named for legal reasons, was 16 when he went on a school trip to the pool in September 2008.
Police received a 999 call from the pool manager saying a disabled man was trying to get into the water, and a carer was trying to stop him and he was getting aggressive.
ZH won a High Court claim for trespass to the person, assault and battery and false imprisonment under the Disability Discrimination Act and the Human Rights Act in March 2012.
Sir Robert Nelson, sitting in London, said that, although the officers were genuinely doing what they thought best, matters escalated to the point where there was a "wholly inappropriate" restraint of ZH.
The judge ruled that a failure to consult carers led to a police failure to understand the potentially serious consequences of applying force and restraint to ZH, who did not like being touched.
But Anne Studd QC, representing the police, told the appeal court Sir Robert had failed to understand "the bigger policing picture" and had come to a "flawed and unworkable conclusion".
He had failed to build in any operational discretion when officers genuinely believed they were in an emergency situation that required them to act at once, and there was no time to consult carers.
She argued: "In the light of this judgment the guidance must be that a belief that a person is in potential danger is insufficient to approach the individual until attempts have been made to consult his carer.
"That is to be compared with the media criticism of those in public service not intervening quickly enough to prevent death by drowning."
ZH, who could not communicate by speech, was at the pool for a familiarisation visit with four other pupils from his school. The court heard it was not intended that any of them would swim or be close to the poolside, but ZH broke away from the group and became fixated by the water, despite attempts to distract him.
When ZH moved closer to the pool, two officers took hold of his jacket or his arm to stop him going into the water, but he was big and strong and the momentum too great. He ended up in the water, which was chest-deep.
He was moved to the shallow end and lifted out by lifeguards, with two police officers taking hold of his arms before handcuffs and leg restraints were applied.
Ms Studd told appeal judges Lord Justice Dyson (Master of the Rolls), Lord Justice Richards and Lady Justice Black the intention of the officers was to lift ZH out of the pool and hand him over to his carers.
There was no intention to detain and restrain him at the side of the pool, but ZH wanted to go back into the water and the officers had to prevent him. He had been held in his own best interests, the court was told.
Ms Studd said the High Court ruling, unless overturned, would have repercussions for policing up and down the country, and in particular the approach that could legitimately be taken by officers attending calls to those with mental disability or mental illness.
She said: "As far as we know, this is the first time the Court of Appeal has had to consider the Mental Capacity Act and disability discrimination legislation in the context of relatively fast-moving and spontaneous incidents attended by the emergency services."
The judge came to the wrong conclusions based on hindsight and information that became known at a later stage and criticised officers in circumstances where others faced with the same obligations had been absolved of any criticism, Ms Studd added.
Before today's hearing, the current Met Commissioner, Sir Bernard Hogan-Howe, was criticised for pressing on with the appeal.
ZH's solicitor Tony Murphy, of Bhatt Murphy, said: "The Commissioner has refused to listen to my client, the trial judge and a host of experts.
"Instead he continues to support the shackling of children with disabilities."
Mr Murphy said it was not in dispute that ZH suffered a worsening of his epilepsy and psychological injury as a result of the restraint.
ZH's father said: "The thousands of pounds of public money being spent by the Commissioner defending the indefensible would be much better spent ensuring his officers treat people with disabilities humanely."
The hearing continues.