Detention in hospital, capacity and treatment: Silent contributions from P in court

By Celia Kitzinger, 7th November 2024

The protected party (P) is in his twenties with an acquired brain injury and a spinal injury that’s caused paraplegia. He also has a long history of illegal substance abuse and is diagnosed as suffering from Post-Traumatic Stress Disorder, maladaptive coping strategies and likely an “executive functioning deficit”.  

He’s been receiving inpatient hospital treatment for about the last two weeks for lower right leg cellulitis and osteomyelitis on his sacrum but will soon be medically fit for discharge.  He objects to being in hospital and wants to leave as soon as possible. 

The case (COP 14244533) came before HHJ Burrows on 29^th October 2024, sitting remotely in Preston.  It was listed in Courtel/CourtServe as concerning: “Whether P lacks capacity regarding residence, care and treatment. Discharge from Hospital. Deprivation of Liberty”.

The protected party was in court throughout, visible on screen seated close to the computer and listening intently to the proceedings.  But P didn’t get to speak to the court: there was no indication that he expected to be able to do so, or was unhappy about not being invited to do so.  His microphone was switched off.  Sometimes he appeared to be asking questions of the person seated beside him (part of his legal team, I think), triggered by particular observations from counsel or the judge.  Sometimes he didn’t wait for a response from that person, so I figured he was expressing an opinion about what he heard, rather than asking a question.  Occasionally he twisted around to speak to his mother, seated some distance behind him, next to an older man (maybe also a relative?) who was never introduced.  

His legal representative via the Official Solicitor (Ben McCormack) mentioned at one point in his submissions that  “P is listening very carefully”. I saw that too.  I also saw that P, via his gestures, facial expressions and mouthed responses was keeping up a running commentary on what was happening in court (as I’ll describe below).

The issues before the court

Basically, the problem is that the “urgent authorisation” depriving P of his liberty expires tomorrow (having already been extended once) but the parties are of the view that he can’t be discharged until there is somewhere for him to live and receive care and treatment – and at the moment there isn’t anywhere.  

The care home P formerly resided in has declined to readmit him, after experiencing a range of difficulties in managing his care including illegal substance abuse (visitors are believed to be supplying him with street drugs)  and treatment non-compliance.  

The applicant ICB (represented in court by Aisling Campbell) is asking the court to rule that there is “reason to believe” that P lacks capacity to make his own decisions about care, residence and treatment, and that it’s currently in his best interests to reside in and receive treatment at the hospital.

The local authority (represented by Roger Hillman) also expressed concern about the expiry of the urgent authorisation  and the need for court authorisation of a DOLS in P’s best interests.

The judge said it clearly wasn’t in P’s best interests to be in hospital – and that it wasn’t in the hospital’s interests to have him there either.  He referred to the position statement from the Trust (not currently a party to proceedings) which he paraphrased as saying that “hospitals are not good places to be, they’re full of infections and he shouldn’t be in a place where he’s at risk of becoming ill”.  He added that – although the Trust had not made this point – P was also “occupying a bed that others may benefit from more than P currently is”.  

The  Trust raised the issue of capacity – because “if P has capacity there is no option to compel him to remain”.  The Trust representative, Ed Pollard, said that “clinicians have assessed P as having capacity for care and treatment decisions” so if they are expected to detain P in hospital against his wishes, as the applicant asks (apparently on the basis of a medical report from a doctor who assessed P in the community before the hospital admission), then they would welcome interim s.48 declarations “to provide the clinical team with reassurance that they’re operating under an appropriate legal framework”.  P is not allowed to leave the hospital grounds and is subject to continuous supervision, “and the longer these restrictions go on, the higher his frustration is predicted to become”.  

Counsel for P said that the question for the court (predicated on an interim declaration that P lacks the relevant capacity) is “whether it is in P’s best interests to reside and receive care at the hospital” – which is, as the judge retorted, “the only place where he can reside and receive care”.  Counsel pushed for an urgent timeframe for the public bodies to come up with a workable alternative and asked for “on a weekly basis, a detailed spreadsheet of all the work being done for P to find a place where he could live”.

The judge was somewhat resistant to organising a next hearing very soon.  He said it was “a difficult case, but I’m not quite sure what the purpose of the court is at the moment apart from devising timetables and authorising DOLS and not making any difference to what is happening to P on the ground. […] I’m concerned that these hearings cost a lot of money – all these people on the blankety blank screen in front of me are doing a good job, but this is also taking them away from their job […]. I’m concerned to make sure he isn’t just filed away and left until something crops up, but what concerns me is having hearings that are pointless: what’s a reasonable timescale?”.   

Judgment

The judge approved the Order in the end  “with the big proviso that P needs to leave the hospital as soon as possible.” He was “acutely mindful that these are interim declarations and  there is in fact to some extent a dispute about the assessment of his lack of capacity… and at the next hearing, the whole issue of capacity will have to be revisited”.  So, on the basis that there “reason to believe” that P lacks the requisite capacity,  P will continue to be deprived of his liberty in hospital (although there’s no medical need for him to be there) until the next hearing, likely to be mid-November.

Silent contributions from P

When P is invited to speak to the judge in open court, we normally report as accurately as we can what they say.  In this case, I am limited to reporting on his silent contributions – but I think they do not leave any doubt about his wishes and feelings on the matters under discussion. They also show that he almost certainly disagrees with the position taken by his court-appointed litigation friend – in that he indicates his own view is that he has the requisite capacity that counsel asks the judge to declare (for now) that he lacks.  

Here are my observations of P’s silent (or inaudible) contributions.

• The ICB  is leading on discharge planning: they’re looking for single occupancy accommodation but will “need to source a property and then start a recruitment drive”. (P nods vigorously.) Until then,  one possibility is that P lives with a family member or in Air B&B.  “With live-in carers?” asks the judge.  (“No!” P mouths at the screen).

• Counsel for the ICB refers to “the strength of his feelings about the restrictions”.  (Vigorous nodding from P).  She said that the Mental Health Trust had found “no acute mental illness” (nods from P) but that concerns had been raised in relation to capacity for contact (P wrinkles his brow in apparent puzzlement and shakes his head). There is also an assessment finding that he lacks capacity for treatment decisions (P’s eyebrows shoot up,  and he shakes his head slowly from side to side in apparent disbelief).

• The draft order before the judge declares that P lacks capacity in relation to residence, care and treatment and the ICB submits that “the court can properly make s.48 interim declarations that P lacks capacity to make decisions about care and treatment”.  (P shakes his head.) 

•  The ICB raises the matter of an assessment of P’s capacity to manage his finances.  (P looks shocked – his mouth open in a display of horrified disbelief that his capacity in this domain should be questioned). She adds that it will take “a month to assess his capacity”.   (P opens his eyes very wide and jerks his head backwards – the sort of non-verbal communication that says something like “this is unbelievable!!”)

• The judge says, towards the end of the hearing: “I’ve decided it’s intolerable for P to remain in hospital with no obvious endpoint. There really has to be something in the meantime that can accommodate him.  I appreciate there are risks with him being outside a hospital setting, but there are risks to him being in a hospital setting too.” (P clearly mouths the word “Thank you!” at the screen).

Reflections

This is only one of many hearings I’ve watched where someone is occupying a hospital bed when there’s no medical need for them to be in hospital – simply because there’s nowhere else for them to go (most recently “A protracted hospital stay: A next hearing in the ‘renal failure’ case).  The BBC reported last year that across England around 60% of patients classed as fit to leave remain in hospital at the end of an average day, with the biggest obstacle being a lack of beds in other settings, such as care homes and community hospitals.

There is nothing the Court of Protection, or any of the lawyers, can do in this situation.  If there’s no placement option on the table, the judge can’t compel anyone to provide one.  As HHJ Burrows said: “the problem is he’s fit for discharge but he can’t be discharged because that means having a package of care in place […] there’s no point dragging the ICB to court when they haven’t found anywhere, or when they have found a provider but still need to source the package of care. There’s no point having a hearing so I can just shout at the ICB for no reason”.

I hope to be able to report on progress at the next hearing. 

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 580 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)