Daniel Clark, 10th March 2023 – with new update by Celia Kitzinger about the emergency hearing on 16th March 2023 (added at end of blog post)
This hearing (COP 14036761, before Mrs Justice Theis) was scheduled to begin at 10:30am on Monday 6th March, 2023. However, the Judge was engaged with an urgent matter and so the hearing actually began just before 11:45.
At the centre of this case is a young woman who has been detained under Section 2 of the Mental Health Act (1983). This case has been blogged about twice. In the first hearing, which I did not attend, the Trust where she was receiving her care (“the discharging Trust”) had decided that she was not eligible to be detained under Section 3 of the Mental Health Act (1983). Celia Kitzinger, who observed this hearing, reported that it seemed a safe discharge was on the horizon.
At the second hearing, which I observed but could not blog about due to work pressures (the blog post is again by Celia Kitzinger), it was clear that the discharge plans had gone awry. The day before the hearing, the discharging Trust, and “the receiving Trust” found themselves in irreconcilable disagreement. The discharging Trust found that P did not meet the criteria for detention under Section 3 of the Mental Health Act, whereas the receiving Trust found that she did, and that discharge into the community would be likely to cause her harm. As no placement could be found at such short notice, the ICB were asking for the Court to authorise P’s deprivation of liberty in the hospital setting whilst a care package could be found.
At the hearing on 6th March 20223, which was held via MS Teams, the people present were:
- Katie Scott, of 39 Essex Chambers, for the Applicant, the Integrated Care Board
- Benjamin Harrison, of Serjeants’ Inn Chambers, representing P via the Official Solicitor
- Avril Rushe, of No5 Barristers Chambers, representing the NHS Trust currently providing care for P (“the discharging Trust”)
- Olivia Kirkbride, also of Serjeants’ Inn Chambers, representing the NHS Trust who will eventually take responsibility for P’s care (“the receiving Trust”)
- P, with her solicitor
- P’s current psychiatrist, and the psychiatrist’s registrar
- P’s social worker
It was a relief to hear that positive steps have been taken to ensure that P can soon be discharged from hospital.
Open Justice
At the beginning of this hearing, Counsel for the ICB gave a brief but detailed opening case summary, including what had changed since the last hearing. Even though I had observed the previous hearing, and was the only observer, there was no way for Counsel to know this, and I was grateful for the summary.
It’s a matter of open justice that hearings begin with a clear explanation of the situation both past and present, so that observers can follow what follows. Without it, observers could have so little information that they would not be able to accurately report the hearings. This, in turn, would make the Court of Protection more opaque than transparent.
P’s presence at the hearing
P was present at this hearing but had not been at the previous hearing. Before going any further, Mrs Justice Theis took the time to ensure that Counsel for the Official Solicitor was in contact with P’s solicitor. This was so P could ask for a break, or indeed express any other needs that she may have.
The Judge also asked how P would prefer to be referred to: either by her first name, or as Miss X, or in any other way. I thought that this was a very positive touch, and that it demonstrated a keenness to ensure that P’s wishes and feelings were at the centre of the hearing. I will return to the way in which P’s wishes and feelings were clearly of central importance to the Judge, and it was nice to see the way in which the Court provided a platform for them.
The care package
Counsel for the Integrated Care Board, in opening, explained that the issue before the Court is “future treatment and care within the options available”. The two options were either for P to remain in hospital or to go to accommodation in the community with a “significant” care package in place. What made this hearing initially easy to follow was that all the parties had agreed that a care package within the community is in P’s best interests. This accommodation has been found, and “the sensory lights have been installed, [the placement] has anti-ligature bedding, and [the placement] has the PBS [Positive Behavioural Support] plan”.
The ICB have also commissioned a private company to provide care with 5 members of staff present, “albeit with only three staff engaging at any one time, with the other two available should there be a crisis or emergency”. This is consistent with P’s support in hospital, where she has been supported on a 3:1 basis. I must admit that I did wonder how the care company will be able to sustain this, given the well documented crisis in recruitment and retention in the care sector. I hope there is some type of contingency plan should these staffing levels be difficult to maintain.
In the event of an emergency that cannot be safely managed at home, Counsel for the Receiving Trust explained that they will “provide a place of safety for P”. This could include facilitation of a Mental Health Act assessment or “steps [that are] taken under Section 136”. However, whilst in this current accommodation, the Discharging Trust (who currently care for her in hospital) will be providing her support under the previously identified specialist pathway. At the end of the initial 6 months of living in the community, it is expected that the Receiving Trust will accept the referral into their care.
Counsel for the Official Solicitor explained that, “[P] wants to give [the placement] a go and would like to go and see it, if at all possible, rather than just photographs”. The Judge clearly thought this was important, and returned to this at the end of the hearing, saying “that’s something that the Court really wants to happen”. She also expressed her gratitude that P could attend the hearing, because “it was useful to see what everyone is doing” to ensure she has the best possible care. Given the delays over the last month, I’m sure it was a relief to hear directly that things were moving along in a positive direction.
An incident
I was very disturbed by one aspect of this hearing. It became clear quite early on that an incident had taken place at the start of this month which resulted in P being physically restrained. However, there was confusion about how many people were actually involved in this restraint.
Counsel for the ICB said that “some reports say six people, some reports say four people”. It was clear that nobody was any the wiser. Only Counsel for the Discharging Trust seemed to have some sort of idea: she reported that her most recent understanding was that four people restrained P, and a further two people were in the room. Either way, a report about this incident is to be submitted to the Court by the end of the week.
I find it unacceptable that there should be such confusion about how many people were involved in a restraint (to be clear, it seemed to me that this confusion was created by the ward staff rather than Counsel themselves). As I have written for this blog before, I have been involved in physical restraint. It’s a physically and emotionally demanding time for all involved, but especially demanding for the person who is being restrained. It is our duty to never lose sight of that.
Part of that duty is ensuring that the details of the restraint are factually reported, in great detail. One of the reasons for this is so that another person reading the subsequent report can scrutinise what happened, and consider what could have been done differently. It also acts as a safeguard for the person, ensuring the cause of any harm (physical or psychological) can be identified.
The information necessary is myriad but includes: the full names of those involved, the position of those involved (i.e. who held what arm in what way), what was said to the person, how long the restraint lasted, and what aftercare (including debriefs) was given to both the person and staff involved. You’d expect, as an absolute bare minimum, to know how many people were involved.
I therefore cannot envisage a situation in which there would be so much confusion about how many people restrained somebody. At the time of the hearing, almost six days had passed since this incident. In my opinion, it should have been crystal clear (at the very least) how many people had been involved. Counsel for the ICB did explain that this has been identified as a potential Serious Incident, and is being investigated.
Going Forward
There are some fine details to be sorted out before P can return to the community. First, there was some confusion about a section of the original Order which ‘gave’ the police the powers to return P to hospital. The Judge was confused by this, stating that it is not for the Court to grant the police powers. However, Counsel for the Official Solicitor stated that the police sometimes ask for this as “it isn’t covered by their usual powers” – their usual powers being detention under Section 136 of the Mental Health Act or to prevent criminal offences being committed. The Judge asked for Counsel to find out what the police want, and whether they still want this, ahead of the next hearing.
Second, there was some discussion about how P might be transferred should she experience a crisis (short of an emergency). The care provider who will be supporting her in the community do not have a secure transport service, and so there is still a question of how P could go from her accommodation to a Centre that can provide support. This issue needs to be resolved by the next hearing.
Finally, it was acknowledged that the Official Solicitor is concerned the initial referral to the receiving Trust would never have been successful because P was “unstable”. The OS wants to know what the discharging Trust thinks about the receiving Trust’s policy. In response, the Judge stated that while “there is a difference between the two main professionals…there is nothing I can do about that”. However, the fact remains that “the Court was having to go from hearing to hearing without knowing what was going on. The focus of the Court is what is best for P” and any judgment will only be able to “recognise this situation and say it hopes it does not happen again”.
At the last hearing, the Judge had asked for a submission on how this situation had been reached, and how it can be avoided in the future. Such a statement had not been produced at the time of this hearing, and Counsel for the Trusts had some disagreement about who would be most appropriate to provide this. Naturally, this Judge wants this issue to be resolved.
I believe that it is very important work is done to ensure a situation like this does not happen again, where competing opinions and policies prevent a young person receiving the next step of support in a timely manner. Hopefully, this situation can contribute to vital lessons to not only these two Trusts but all Trusts.
This case will return to Court on Monday, 20th March, at 09:30, at which point all finalised plans will have been submitted to the Court. In the meantime, P will remain in hospital under a deprivation of liberty.
Daniel Clark is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research takes seriously Iris Marion Young’s claim that older people are an oppressed social group, and is funded by WRoCAH. He also works as an healthcare assistant in the NHS. He tweets @DanielClark132.
UPDATE: HEARING ON 16 MARCH 2023
By Celia Kitzinger
There was an urgent hearing before Theis J at 9.30am on 16th March 2023 – the Thursday before the hoped-for hearing on the following Monday at which the parties would invite the judge to approve an order for P to move into her new flat.
“What’s happened is she’s spent a lot of time in police custody”, said Katie Scott, counsel for the ICB. “There was an ‘episode’, if I can describe it like that, when she assaulted a number of hospital staff, and police. There were attempts to return her to [the Hospital] from custody, but she’s made it very clear that she doesn’t want to spend time in hospital. Within minutes of being returned she had assaulted staff – and then, when they were called, the police. That happened again last night. Matters have escalated today, and members of staff on the ward felt so strongly that it was not in P’s best interests to spend any more time on the ward, even just until Monday, that it’s been considered whether she could be moved sooner. The agreed position of the parties is that it would be in P’s best interests to move to the flat today. She is currently in custody and the police could convey her to the flat and the Hospital will send her belonging on today.”
Counsel for the Official Solicitor (Ben Harrison) reported P’s view that “she was very clear that she wanted to be in prison rather than go to the Hospital again.
After some (short) discussion about the staffing ration (5:1) at the new flat, the safeguards relating to restrain – in particular prone restraints, and the importance of locking away knives, the court approved P’s move to the new flat, with the hope that there would now be “some structured calm for P to have the best opportunity to make this placement work for her”.
The next hearing is listed for 2nd May 2023, and the judge reminded everyone that the court was available for an urgent application before then, if needed.
Celia Kitzinger is co-founder of the Open Justice Court of Protection Project and tweets @KitzingerCelia
Promoting Open Justice in the Court of Protection 