P has capacity to decide to leave hospital – but there’s nowhere for him to go: Untangling capacity, “being on a DOLS”, and the care plan

By Amanda Hill, 24th February 2025

P, the protected party in this case, is a young man in his twenties, with an acquired brain injury and a spinal injury that has caused paraplegia. He’s been in hospital since October 2024 but has been medically fit for discharge for some months.  There’s an earlier blog post here: Detention in hospital, capacity and treatment: Silent contributions from P in court which reports the judge saying that “P needs to leave the hospital as soon as possible.” 

But P was still in hospital three months later at the time of this hearing, COP 14244533 before HHJ Burrows in Manchester on 7th February 2025. 

I observed the hearing remotely, as did P, who was in a room at the hospital with another person, presumbly a member of his legal team. Everybody else was in the physical courtroom, including Ben McCormack (counsel for P via the Official Solicitor),  Aisling Campbell (counsel for NHS Lancashire and South Cumbria ICB) and Eliza Sharron (counsel for the Leeds Teaching Hospitals NHS Trust).  

At least, I think it was Aisling Campbell and Eliza Sharron. I found it hard to hear the introductions and there was no summary of the case (so it wasn’t best practice in accordance with guidance from the former Vice-President of the Court of Protection, Mr Justice Hayden). But as I had read Celia’s blog, I was familiar with the background. The Local Authority was not represented in court

As the judge stated during this hearing, P wants to leave hospital, the hospital want him to leave, and “people shouldn’t be in hospital if they don’t need to be”.  (I try to be as accurate as possible when reporting speech but it won’t be completely accurate since we are not allowed to audio-record hearings and I don’t touch type.) 

As at the previous hearing, no suitable accomodation was available .  What had changed since the previous hearing, when there was a question about whether P had capacity to make decisions about where he lived and received care, was that P is now presumed to have capacity to make the relevant decisions. The judge stated that the capacity assessor “is not able to say that the presumption of capacity is rebutted”. 

Much of the hearing therefore focussed on what would happen to P once he left hospital. The nub of the problem was that there was nowhere for P to go. There was concern about P’s welfare if he discharged himself with no accomodation in place. But, since he is now presumed to have capacity to make his own decisions, the court cannot stop him from discharging himself. The discussions that took place in the hearing shed light on the difficulties facing people like P, public bodies with statutory responsibilities, and the role of the Court of Protection. 

Remaining in hospital: P’s view of “Being on a DoLS” and the role of multiple agencies 

It was clear from what P’s counsel reported, and later what P himself said, that P was desperate to leave hospital. And the judge acknowledged that the situation had been going on for too long. At one point P’s counsel  stated that the hospital “don’t want him there and P doesn’t want to be there” and the judge stated “We have been saying that all along”. But there seemed to be some misconceptions about why P was still in hospital. At the start of the hearing, the judge said that P was concerned about the status of “being on a DoLS”. P’s view was repeated later in the hearing when counsel for P ( via the OS) stated that “the DoLS has been ( the legal authority) stopping him….looking for his own flat”. P thought that “being on a DoLS” was stopping him from finding rented accomodation. The judge asserted that P was not the only one who “has difficulty with that as a status”. He said that people think “the court has sentenced them to prison”. The judge stated clearly that it was a “misunderstanding” and that “being on a DoLS” is not a status. He reiterated that it is important for professionals to state that restrictions are due to the care plan and that P will need a care plan even if the court has no further involvement. 

He outlined two components of the court’s role: P’s capacity to make decisions and then his best interests and the subsequent care plan. The judge then stated baldly that “due to the chaos of interactions between various state agencies in this case, care has been given an ambiguous definition.” He continued by saying that P has been kept in hospital for “months on end” because it has been deemed to be in his best interests. Now he has been assessed as having capacity to make the relevant decisions for himself (except in relation to litigation), his best interests will still be there. The judge said “there are still good reasons for him to have a care plan but the court will not have power over them”. 

HHJ Burrows has come across this ‘misunderstanding’ before and in a judgment published in December 2024, [2024] EWCOP 76 (T2), he explains clearly (see §45 – §62)why being “ on a DoLS” is not a status. Quoting directly from that judgment: “The Court approves the restrictions, it does not create them.” (§62)

Free to leave hospital – but where will P go? 

This hearing took place at 12pm on a Friday. It seemed to be a fast moving situation, as the judge stated at the start of the hearing that things had been coming into him when he was in his room so he wanted Counsel to “bring him up to speed”. He asked where P would go if, “as is traditional on a Friday”, he were discharged from hospital at 4pm, or he discharged himself. Various options were raised during the hearing. Counsel for the ICB stated that P could remain in hospital while the ICB investigated a B&B option. Counsel for the Trust later also stated that a B&B could be found if P was presenting as homeless and having capacity. But, if the DoLS was lifted, there would be no legal basis to keep P restricted and he could discharge himself. If he was street homeless, maybe he could stay with friends and family and become a priority for emergency accomodation? The judge seemed to prefer the idea of P staying in hospital than “sofa-surfing”. Counsel for P (via the OS)stated that the local Council would have responsibility for finding P accomodation. They would want to know as much as possible about P to find suitable accomodation, given that P uses a wheelchair and has ongoing health needs, such as needing wounds treated. The judge wanted a concrete answer as to who would take responsibility for finding accomodation for P: “Who is going to tell them that he might be on the market this afternoon?”. Counsel for P (via the OS)  suggested that discussions would happen as soon as the hearing finished. 

P’s voice in court

I could see from the screen that P had been listening intently to these discussions about his future and his lawyer reported that P knew that he needed continuing treatment and he was also happy to have welfare checks. P’s preference was to have a fixed address. The judge was told that P would like to speak to him, if there was time. P briefly spoke, finishing his short address by saying  “I feel like I deserve a second chance….I just want my independence back, I feel I deserve it”. The judge replied that he had “good news” for P. 

The ongoing role of the court and P having to prove himself in the ‘real world’

During discussions at the start of the hearing, the judge said that he was “trying to get my head around the order you want me to make…..we have got to the point where enough is enough”. Normally, if the court is satisfied that P does have capacity to make decisions concerning where he lives and his care, the Court of Protection’s involvement ends. The judge spelled it out by saying “I am interested in his welfare but I have no interest as a judge in his welfare if I order now (that he does have capacity for everything except conducting litigation)…everything else becomes a matter for him”.

But there remained concern for P. The judge stated that when P is back in the real world, he is likely to come up with things that “may test that” (evidence to “rebut the assumption of capacity”).  Counsel for the ICB had already said that they were “very worried about P and that he will come to harm”. They went on to suggest that two weeks would “give P a chance to prove himself”. In his final statement to the court, the judge said that there was still uncertainty about how P would make decisions about his care and “uncertainty about his capacity in the real world.” (my emphasis). The implication was that if P didn’t prove himself capable of keeping himself safe, the Court would become involved again.  The judge concluded that, “unusually”, he would list another hearing for two weeks time. This was to avoid having to go through the process of making a new formal application to the court. The judge hoped, though, that there would be no need for the hearing. 

“The situation now is that he can make decisions for himself , it is not for the court to tell him what to do, he has capacity (except for litigation). I hope he looks after himself as he is physically and mentally vulnerable and I hope he will look after himself in the community. It’s important he stays in hospital until he has somewhere to go but ….he can do what he likes from now on….I wish P the best of luck now that he is free to leave.”

And, after the judge thanked the capacity assessor for her work, the hearing ended and P was free to do what he liked. For the time being. 

Reflections 

This hearing highlights the difficult situation where there are concerns about a person’s vulnerability but where they are deemed to have capacity to make decisions for themselves. Keeping somebody in hospital because they have nowhere to live does not seem an acceptable solution. I ask myself what was gained for P in the gap between the hearing that Celia observed in October 2024 and this hearing in February 2025? P was free to leave hospital but still had nowhere to go, just like last October. And it seems as though he blames the Court of Protection for his prolonged stay in hospital, whereas the Court was actually authorising restrictions in his care plan. It seemed to me, from what the judge was saying, that mulitple public bodies being involved had not helped this situation. And the confusion around who had responsibility for doing what for P after the hearing didn’t seem clear. 

There are echoes in the issues arising in this hearing with another case that I have blogged about: A “Catch 22” situation for P or Hobson’s Choice?  Disagreement among professionals as to whether P has capacity and a finely balanced decision for the judge . P was being kept in hospital amid doubts about his capacity to make decisions for himself, and having nowhere to go. 

Alex Ruck-Keene wrote about this type of situation in relation to a different case [CT v London Borough of Lambeth & Anor [2025] EWCOP 6 (T3)] :“The flashpoint in this case was around discharge from hospital (in particular in a situation where one potential option had been discharge to be street homeless). Capacity in the context of homelessness is a notoriously difficult area, not least because it is so often loaded with assumptions about individuals, and also capacity being used as a gatekeeper by organisations with stretched resources.” (see Capacity, insight and professional cultures – an important new decision from the Court of Protection). He points readers to research that is being carried out on the subject of “assessment of the mental capacity of people who are experiencing multiple exclusion homelessness (MEH)”. 

I did also wonder about the need for P to prove himself once he left hospital. It felt a bit like the court was saying:  we know you are vulnerable and we are worried about what your decisions will be once you are no longer supervised. So if you step out of line, we will get involved again. Would the pressure of future court involvement once again weigh on P? I can understand why there is concern about P , but is it the role of the Court of Protection to act as a deterent to keep P on the straight and narrow, so to speak? 

I am also curious about why P was assessed as having capacity in all areas except capacity to conduct litigation. Having the position statements may have shed light on that. I sent a message to the judge after the hearing asking that he give permission for the parties to share their position statements with me,  as it is always helpful to read the different arguments being made. But so far I haven’t had a reply. And I must admit that I didn’t feel brave enough to ask the judge during proceedings. 

The term DoLS seems to be frequently misunderstood by professionals and this is then passed onto a protected party.  Is it easier for professionals to blame a judge for a situation that a P finds themselves in? Or is it that the professionals themselves don’t understand Deprivation of Liberty Safeguards? His Honour Judge Burrows has made it clear what he thinks about the term “Being on a DoLS”. 

I made a note in my diary to see if this case was listed again on 21st February. I looked, but I couldn’t find it. I hope this means that P has adapted well to being back in the real world. Like the judge, I wish him good luck. 

Amanda Hill is a PhD student at the School of Journalism, Media and Culture at Cardiff University. Her research focuses on the Court of Protection, exploring family experiences, media representations and social media activism. She is on LinkedIn (here), and also on X (@AmandaAPHill) and Bluesky (@AmandaAPHill.bsky.social)