Approving discharge arrangements and deprivation of liberty

By Celia Kitzinger, 8th February 2023

This is yet another case reflecting the problems caused to individuals due to the national shortage of appropriate accommodation for young people with complex needs. 

I observed the hearing (COP 14036761) on 3rd February 2023 before Mrs Justice Theis sitting (remotely) in the Royal Courts of Justice.

A teenager is still in hospital (under s. 2 of the Mental Health Act 1983). She’s been ready for discharge for some time – but there’s nowhere for her to go.

She  experienced a traumatic childhood, including neglect and (alleged) sexual abuse. She’s been violent and abusive to staff to the extent that she was moved to seclusion (“like a prison”, she says) in mid-January  – which is where her solicitor spoke to her, through a viewing window.  She said she “does not want support, because she wants to be dead”.  

She expresses “suicidal ideation” and has self-harmed (attempts to ligature, head-banging). There’s no clear diagnosis – various possibilities were mentioned including “borderline personality disorder, emotionally unstable personality disorder, complex post traumatic stress disorder, reactive attachment disorder of childhood and learning disability”.  There was also a (contested) opinion that she may have “autism spectrum disorder”. Many of the current issues with her behaviour may be linked with her ongoing presence of a busy and noisy hospital ward, where her sensory needs cannot be properly addressed.

In the opening summary, counsel for the Integrated Care Board [ICB] (David Lawson of Serjeants’ Inn Chambers) described the difficulties faced by this young woman, and the work done to try to support her – with the community trust, the police, and via implementation of “positive risk taking”.  They “can’t find secure accommodation” and are planning discharge into the community – which I understand has been tried before (recently) and was not successful.  She currently receives 5:1 support. He briefly mentioned issues relating to physical restraint in public “and how that would look to the public and how feasible it is and whether people would intervene”. The ICB has made an application to scrutinise the discharge plans being developed (they hope for discharge on 13th February 2023)  and to approve the deprivation of liberty that will arise when she is discharged.

Counsel for the protected party via the Official Solicitor (Benjamin Harrison of Serjeants’ Inn Chambers) outlined the kind of evidence they would hope to see about where she moves next: that it is adapted appropriately (e.g. the lighting) to meet her sensory needs; that community mental health support is available; and that her support needs are organised proportionately – including therapeutic support, and crisis planning. Her counsel is also concerned to ensure there are activities she’ll be able to engage in:  “She is very keen to be outdoors… she really wants to be out and about, sporty and energetic activities… gym membership”; she’s said “I love animals” and would like to volunteer on a farm. According to her counsel, “a robust and functional MDT [Multi Disciplinary Team] will be key to securing [her] safe discharge from hospital”.  The concern is that she should not remain in an inappropriate acute inpatient setting for any longer than is absolutely necessary, but nor should her discharge plans be rushed to the extent that a return to the community (or any other setting) is set up to fail – with potentially fatal consequences.

The case is likely to be back in court on Friday 10th February 2023, unless the parties (which also include the Local Authority and Mental Health Trust) reach agreement on all the plans before then – in which case they’ll lodge a consent order asking the judge to approve them, and to vacate the hearing.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has observed more than 390 Court of Protection hearings since May 2000. She tweets @KitzingerCelia

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