By Celia Kitzinger, 30th August 2026
An already appalling situation has become even worse for the vulnerable woman in these long-running Court of Protection proceedings. The judge, Mrs Justice Lieven, described the recent turn of events as “extraordinary”.
In brief, the court determined about a month ago (on 28th July 2026) that it was in the best interests of the protected party (“P”) to be discharged home from hospital as soon as practicable, with care provided by “The G Agency”. Since then, allegations of abuse have been made against this agency’s carers by both the Official Solicitor and by family members. A safeguarding investigation is underway with Essex County Council. The G Agency has suspended six members of its staff, and the local authority has terminated its contract with them. The woman at the centre of the case remains in hospital and the ward now has an outbreak of CPE[1], an antibiotic-resistant ‘superbug’ , and P has tested positive. The hospital plan is to temporarily close the ward in order to deep-clean it, but (as of 21st August 2026, the date of the last hearing) there was nowhere for P to go. And as long as P remains on the ward, more than 30 beds remain unavailable, creating what the Trust calls “an extremely unsafe position” for other patients.
These are the latest developments in a case (COP 13630253) concerning a vulnerable woman who’s been in hospital and deprived of her liberty (despite being fit for discharge) for more than a year. The delayed discharge was initially caused by extensive delays in completing a care plan and has since been compounded by her home having been left dirty and unsafe by carers – and now by the allegations of abuse. All the parties agree that staying in hospital is not in P’s best interests. She has a moderate learning disability, complex post-traumatic stress disorder, generalised anxiety, dissociative disorder, epilepsy and has recently been diagnosed with “Autism Spectrum Disorder”. The situation she’s now in has been described as “counter-therapeutic“: it’s contributing to her distress, dysregulation and “significantly challenging behaviours”. But there’s still no realistic plan for getting her home.
We’ve described earlier hearings in this case, starting in September 2025 when it was before HHJ Hilder)[2]. Over the course of more than 14 hearings, first before HHJ Hilder and then before Mrs Justice Lieven, these experienced and hands-on judges have failed to achieve what all parties agree should happen: P’s safe return home. It seems that even repeated robust judicial intervention cannot make a dysfunctional system provide the necessary care.
The allegations against The G Agency, which has been providing care for P in hospital, are serious. Evidence includes video footage said to show P being pulled or dragged through a doorway by her ankles while saying “ow”, photographs of P’s unexplained bruises, CCTV coverage of an incident of restraint (also witnessed in person by P’s legal representative), and more. The Official Solicitor, acting for P, has expressed “immense concern that … despite the many legal teams involved in these proceedings, and the oversight of the court, [P] has been subjected to wholly inappropriate care and sustained multiple injuries”.
The plan was for this same care agency to support P after her discharge home. That’s now, obviously, off the table – yet without an alternative care package P cannot leave hospital. As Lieven J put it in the course of the most recent hearing: “P is continuing to receive what we consider to be abusive care – and the court is in the extraordinary position of authorising that as being in her best interests because there is nothing else available”.
This case exposes the limits of the Court of Protection’s powers when the problem is not disagreement about what should happen, but the apparent absence of a safe and workable way to make it happen. More than a year after P became fit for discharge, and despite repeated judicial intervention, she remains in hospital where she has been exposed to inappropriate and ”abusive” care.
This blog will:
(1) Recap on the delays in getting P home earlier in the proceedings, before the July 2026 hearing: first, the failure to comply with court orders to produce an eating and drinking plan; then the “terrible state” of P’s home; and finally concerns about unsuitable and possibly abusive care.
(2) Summarise key events between the hearings of July and August 2026, leading up to The G Agency’s contract being cancelled the evening before the August 2026 hearing.
(3) Describe what happened at the August 2026 hearing.
I’ll end with (4) Reflections.
1. Delays in getting P home before the July 2026 hearing
The most extensive delays in returning P home (delays amounting to more than 10 months) arose from the ICB’s repeated failures to provide a care plan covering how P’s eating and drinking would be managed at home. Further delays in the last couple of months were occasioned by P’s home not being in a fit state for her to live in, and most recently by concerns about the quality of care provided by The G Agency – an agency which was appointed on 13th July 2026 after a previous agency had unexpectedly served notice.
Eating and drinking plan: The ICB and LA were initially directed to file a care plan by 29th July 2025, to include how P’s nutrition and hydration needs would be met on return home. They did not comply – and this was followed by (at least) three more court orders with successive deadlines (1st December 2025, 27th May 2026, and 15th June 2026) before the care plan was finally produced. Reflecting on the public bodies’ repeated failure to comply with court orders, Lieven J said (at the hearing on 5th June 2026) “I apologise to (P’s siblings), who must think that the justice system is a bit of a joke. But we have to do our best”. There is now a plan in place, plus clinicians have recently said she can go home with the NG tube in place, which makes things more straightforward. It is entirely opaque to me why a care plan the judge ordered to be produced by 29th July 2025 was delayed for such a long time.
By the hearing of 29th June 2026, a plan was in place for P to go home in the week beginning 27th July 2026. But given the history of the case, the judge was clearly sceptical about the likelihood of this happening without judicial “micromanagement” (her term). She referred to “a distinct feeling that the moment I’m off the job things might not happen” and wanted to know the “granular detail” of the proposed arrangements to check that the parties were not merely saying they agreed “for the sake of the hearing” before “reneging later”. A timetable was agreed, and a further hearing listed for 28th July 2026, with the expectation that P would be discharged home on 30th or 31st July 2026. “For the next four weeks”, said the judge, “everyone’s focus should be on getting P out of hospital”.
At the hearing on 28th July 2026, at the beginning of the week when P’s discharge home should (finally) have taken place, everything began to unravel, with two key concerns: the state of P’s home and the quality of care.
The state of P’s home: Given the indication that P might be going home soon, P’s siblings had gone to her bungalow (purchased for P with NHS England funding) the day after the 29th June hearing and they reported that it was in a “terrible state” and not fit for her to return to. Problems included: dishes with mould in the dishwasher, swarms of dead bugs everywhere, filthy floors, out-of-date food in the cupboards, broken office furniture abandoned by a previous care agency, none of the hoists and slings had been serviced, the sensory room needed maintenance, and the broken footrest on the wheely recliner chair needed to be repaired. Bags from McDonalds and cups from Starbucks had been left all over the office room (used by staff – none of this was P’s) rather than binned and disposed of, and the office carpet was heavily marked. Agency staff (they said) had “shown a real lack of respect to [P]’s home and her possessions”. The two siblings had started tidying up but it was beyond what they could reasonably be expected to achieve without professional help.
Concerns about carers: P is being provided with additional care and support in hospital by a care agency (“The G Agency”) commissioned by the Trust responsible for the operation of the hospital in which P is cared for[3], as the hospital staff were not considered able to meet P’s needs. There had been two previous care agencies in this role, both of which had given notice. By this point there were also serious concerns from the Official Solicitor and from P’s siblings about the standard of care provided by The G Agency. They’d been caring for P in hospital since 13th July, and the plan was that they would care for her at home. P had told her legal representative (from Irwin Mitchell) that she did not want to go home with The G Agency’s staff: she did not feel safe with them, and she used the words “abuser” and “attacker”. It was reported that The G Agency carers had not learned Makaton (as directed by the court), so could not communicate with P, which was a known ‘trigger’ for her to become dysregulated – which in turn meant that she was then restrained. Carers were also using known triggers such as saying that P “has capacity”, that the police will be called, and hat she has injured staff. According to the siblings: “P currently has a staff team that cannot communicate with her and who are restraining her physically and chemically frequently. They do not appear to be taking a trauma informed approach, or understand that a trauma informed approach is needed. P is calling [her sister] 50 to 100 times a day to say she is unhappy/scared” and that she “does not want to go back to the bungalow with The G Agency‘”.
An incident of allegedly inappropriate restraint had been witnessed by P’s legal representative (from Irwin Mitchell) when she visited her client on 20th July 2026. During a conversation about returning home with The G Agency, P became upset. She lowered herself from the bed onto the floor, and was shouting, but not self-harming or causing a risk to anyone else. Three carers entered the room and, without asking the legal representative what was happening, they physically restrained P. There were no attempts at de-escalation and no other options for managing the situation were discussed or considered. According to the OS, “There was no immediate risk of harm that warranted three people holding her down. It was the intervention by staff that caused her to become agitated and to hit out“.
On the evidence currently available, the Official Solicitor considers that on 20th July 2026, “known triggers were not avoided; de-escalation strategies were not followed; there was no immediate risk of harm to [P]; physical restraint was not used as a last resort and was not proportionate. A safeguarding referral has been made by Irwin Mitchell to the relevant safeguarding body, which is Essex County Council”. The OS also notes that the care record provided for 20th July “contains no reference to the use of physical restraint at all which is extremely concerning” and a violation of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, regulation 17, which is enforced by the Care Quality Commission.
The incident of 20th July had been recorded on CCTV. On 22nd July, P’s sister noted new bruises and a new graze on P’s chest which was bleeding. These concerns superseded the agenda for the Round Table Meeting, convened on 22nd July 2026 to discuss final steps for getting P home. Professionals from the ICB and LA then reviewed 3 hours of CCTV footage covering the visit on 20th July 2026, along with the attendance note, the daily care records and statements from a carer and a nurse employed by The G Agency who were involved in the use of restraint. They took the position that, on balance, the degree of restraint used was proportionate (though the LA’s legal representatives had not had the opportunity to review it yet). They noted that the final and independent determination of whether P has been subject to abuse will rest with the safeguarding authority, Essex County Council. In the meantime, they suggested the need for “a communication protocol so that any family concerns about the care being delivered can be sent to senior managers, as opposed to being raised with individual carers directly”.
At the 28th July 2026 hearing, all this was reported to the judge. P’s siblings described the new care providers as “the worst agency they’ve been involved with” and said that P was begging them to stop her having to go home with them. The Official Solicitor said she was “gravely concerned following that visit that [The G Agency staff] are unable to meet P’s needs and provide appropriate care to her, and that their use of physical restraint on [P] on [20th July 2026] was unlawful”. She was not optimistic that P would return home as planned but was “at a loss” to suggest how best to proceed: “After at least 14 court hearings, many more orders having been made on the papers, multiple expert reports obtained and a costs order made on the Official Solicitor’s application against two of the statutory bodies, the Official Solicitor is somewhat at a loss as to what else can be done to get [P] home with an appropriate package of support”.
Although, at the July hearing the judge was sympathetic to concerns from both the Official Solicitor and the siblings about the care company, she wanted no more delay: “They are the only carers prepared to work with P … if we start looking for new carers, we’ll be back to square one”. The judge (described by one observer as “furious”) demanded “a remorseless focus on getting P out of hospital” and authorised care and restrictions to continue with The G Agency.
At the hearing a month later, when the care package had irretrievably broken down, the OS was to say, grimly, to the judge: “It gives me no pleasure to say ‘I told you so’”.
2. Between the hearings of 28th July and 21st August 2026
Events moved quickly over the (almost) four weeks between these two hearings. I have pieced together what happened from what is recorded in the parties’ position statements for the 21st August 2026 hearing.
2.1 A judicial meeting (5th August 2026) followed by an application for the judge to recuse herself.
In a very unusual move for a judge in this situation, Lieven J pursued an earlier proposal to chair a meeting outside of court to resolve concerns about the care package. This meeting took place on 5th August 2026 and resulted in a plan to discharge P to her bungalow on 14th September 2026, with care provided by The G Agency.
Discussions also took place about the possibility of appointing a “Super Care Coordinator” (a named consultant clinical psychologist) who would be responsible for overviewing and managing the situation going forward. The view of the Official Solicitor was that this is essential since “it has been conclusively demonstrated in the course of these proceedings that the existing MDT [Multi Disciplinary Team] are not capable of getting [P] home with a sustainable care package in place”.
The proposal for a “Super Care Coordinator” was opposed by the public bodies, who consider that they “can and should continue to work collaboratively to manage P’s case moving forward”. According to the local authority, “adding another layer of management is unnecessary and may cause further delay”. It’s not within the powers of the judge to order this appointment.
After this meeting (and a subsequent Round Table Meeting), the local authority submitted an application that Lieven J should recuse herself, arguing that the judicial meeting was analogous to a Financial Dispute Resolution appointment in family proceedings or a dispute resolution hearing under the Property and Affairs Pathway, so that it was not appropriate for her to continue to act as a judge in the case. They also claimed that some of what Lieven J said in that meeting indicated “bias” and that the judge had “formed a concluded view on the central issues in dispute”. One example (it’s taken from notes made during the meeting and quoted by the siblings who opposed the recusal application) is this series of questions from the judge:
“How is [The G Agency] going to check implementation of training and check it’s being absorbed. You don’t grab ankles of someone who has autism and no sense from the video of people who are autism and trauma informed. What are [The G Agency] going to do to make sure training is absorbed and implemented. […] Everyone who watched that video would say things went wrong – mistakes happen but learn from them. [In terms of training] “one of the most useful things is to watch the video and if you watch it, there are some obvious lessons.”
The siblings submitted that “these comments do no more than express concern about one interaction caught on video and show the judge asking for information about training and communication in order to facilitate a discharge with The G Care Agency”.
In the event, the application for the judge to recuse herself was withdrawn before the next hearing (I don’t know why, but I assume because the agency in relation to which the judge had allegedly displayed bias was now out of the picture).
2.2 Decision made to temporarily close ward due to ‘superbug’ (10th August 2026)
A ‘super-bug’ outbreak (Carbapenemase-Producing Enterobacterales (CPE)) on the ward means that all patients (except P) are in the process of being discharged so that a full deep clean can be done. P has tested positive for CPE (although she’s asymptomatic) but this means she cannot be transferred to another ward due to the risk of spreading the infection to other parts of the hospital. According to the ICB and Trust, closure of the ward means that more than 30 beds cannot be used and the Trust responsible for the operation of the hospital says this will have a significant impact on patients and presents operational difficulties for them and for the local ambulance service: “if the ward is not able to reopen for an extended period of time whilst discharge planning for [P] continues, this will leave the Trust in an extremely unsafe position”.
2.3 Round Table Meeting (17th August 2026) and a second incident of alleged abuse
At the Round Table Meeting held on 17th August 2026, there were further concerns about what the Official Solicitor and P’s siblings considered could constitute “abusive” treatment of P from the carers. Nonetheless (according to the OS), “none of the statutory bodies were concerned that there was an immediate threat to [P’s] welfare“.
The video of the “ankle-pulling” incident from the previous Friday did not become available to the parties until after this meeting and there was a discrepancy in reports about what had happened. It was said on behalf of The G Agency that carers were only holding P’s legs down, not pulling or moving her.
The video was shared the following day, and the OS says that it “shows [P] being pulled by the ankles through a doorway while the carer pulling her says ‘come’. [P] calls out ‘ow’ when the pulling starts“. The carers’ notes that seem to correspond to the video record P’s “very challenging, physically aggressive behaviour towards all staff on duty this morning“, say that she “rolled towards the door” and that she then “took videos whilst she screamed to indicate she was being hurt, later told staff I’ve sent it to tiktok and my Sister During this escalation [P] was held in safe hold to maintain her safety“. There is no indication in the notes that she was being “pulled” or “dragged” by her ankles – but this seems (from what the parties now say) to have been readily apparent from the video-recording.
On the basis of what was said at the meeting, and without seeing this video, the ICB and Trust indicated that in view of the extensive work done to date to provide training and support to the care team and to ensure P’s bungalow was ready, it was appropriate to continue to work towards discharge on 14th September 2026 with The G Agency. They acknowledged the safeguarding concerns raised by the OS and the siblings but took the position that the safeguarding investigation (with Essex County Council) needed to take its course.
This was opposed by both the Official Solicitor and by the siblings.
The day after this Round Table Meeting (18th August 2026), the Official Solicitor filed an application for an urgent hearing to address her serious concerns about P’s welfare. She asked for a different judge (not Lieven J) since “arguments about bias and recusal are an unhelpful distraction which will delay the court focusing on the crucial question of whether [The G Agency] can continue to provide care to [P]“. In a position statement prepared two days later (20th August 2026) for the following day’s hearing, she said she was “appalled that the statutory bodies’ response was to say they needed to see more evidence, take statements from care staff, and let the safeguarding process play out, on the basis there was not enough evidence to suggest that [The G Agency staff] should not be providing care to [P]”.
The Official Solicitor’s position was that The G Agency “are providing care to [P] which is not safe, is not in accordance with court-authorised care plans, is not in her best interests, and which infringes her rights under Articles 3 and 8 ECHR”. Accepting that P does exhibit challenging behaviour and that caring for her is not easy, the OS points out that, despite this, “previous care agencies have been able to provide care that did not result in her sustaining bruising injuries and being physically restrained in this manner“. The OS also points to multiple other deficiencies with The G Agency that have arisen in the context of trying to improve the care they provide. These include: failure to provide details of their proposed training, no plan for staff reflection and learning, and no Positive Behaviour Support (PBS) plan designed to avoid situations where restraint or other physical intervention may be required, and to support the use of de-escalation strategies where avoidance has not been successful, and ensure the safe use of restraint. The OS also expresses her concern that although the ICB say that they review the care provided to P, this review appears to depend on The G Agency sending them accurate records “which as has been demonstrated by the disclosure in these proceedings, is not happening“.
The siblings refer to manifold failings of the carers (manual handling which is not in line with any care plan and which has injured their sister; over reliance on restraint, both physical and chemical; failure to engage positively with her; using known triggers; and failing to learn Makaton): they had “lost all faith that the G care agency might change their approach“. Their view was that sending P home with The G Agency would “set P up to fail so that readmission to hospital is inevitable, leading to further deterioration and institutionalisation”.
2.4 The G Agency’s contract is terminated (evening of 20th August 2026)
The G Agency informed the ICB (on 20th August 2026) of their decision to suspend 6 members of staff. In the light of this, and on the basis of their own review of CCTV footage, the ICB decided to terminate their contract with the company and served notice that evening (Thursday 20th August 2026).
The ICB then brought in the Chief Nurse and Head of Safeguarding to provide oversight and input to the care team, and said they were continuing to “actively monitor and respond to the situation as it evolves”. They were liaising with the LA urgently to consider alternative care arrangements: it was possible that the previous care agency might step into bridge the gap (albeit only while P remains in hospital). They also said that spot checks would be made overnight by ward staff, some of whom are already trained to work with P and others of whom would be shown a training video to help them. They now (finally) recognised that the allegations (and evidence) of abuse meant that the planned move of 14th September 2026 could no longer take place. They were urgently seeking an alternative home care provider.
2.5 Progress on making P’s home safe and habitable
More positively, P’s bungalow has been professionally deep-cleaned and repairs have been carried out. The plan is to install CCTV in early October. There’s some dispute about the use of body-worn cameras in the meantime, and also subsequently in areas not covered by CCTV (e.g. the bathroom) but it wasn’t suggested that this would delay P’s move.
3. Hearing of 21st August 2026
This was a remote hearing that lasted 35 minutes, with the following parties:
- NHS Norfolk and Suffolk Integrated Care Board and Essex Partnership University NHS Foundation Trust (as joint applicants) (ICB and Trust) represented by Claire Watson, Serjeants’ Inn Chambers. (The ICB and local authority are jointly responsible for commissioning P’s s.117 MHA 1983 aftercare package.)
- P’s siblings represented by Anna Bicarregui, 39 Essex Chambers (acting pro bono)
- Suffolk County Council (the local authority) represented by Sophy Miles, Doughty Street Chambers
- The protected party (P) by her litigation friend the Official Solicitor (OS) represented by Victoria Butler-Cole KC, 39 Essex Chambers
- Hertfordshire Partnership NHS Foundation Trust (HPFT) – acts as P’s care coordinator and is responsible for community learning disability services in the locality of P’s home but are “not responsible for commissioning any part of P’s package of care and support, nor for the monitoring of its quality”
The judge had slotted in this hearing as an urgent matter while she was on vacation, beause at the last hearing she’d anticipated being able to authorise P’s return home. Obviously, that wasn’t now going to be possible since the contract with The G Agency had been terminated the evening before and no alternative care team had yet been sourced.
The judge opened the hearing by saying: “The reason for urgency of this hearing was to get P home in a couple of weeks time. That’s not going to happen because we’ve got to find a new care provider. So, I’m not really sure what there is for me to decide today”. She also noted that the application for her to recuse herself had been withdrawn, so that wasn’t something she needed to deal with.
The judge then addressed the application from the Official Solicitor for appointment of a “Super Care Coordinator” – the named consultant clinical psychologist – and for his team to step in to support a different care agency as an urgent interim measure. She said: “I appreciate there’s an argument about whether another person should be appointed to coordinate care. I’m not convinced that’s a matter I can- (she breaks off and restarts) I think that’s an NHS internal matter. It is, to put it mildly, disappointing, Ms Watson [counsel for the ICB] that the care coordinator hasn’t engaged with P and that P won’t engage with the mental health nurse”. (Later in the hearing the judge said: “of twenty-four people paid by the public purse, only one of them had met P”, adding “it shocks me beyond belief”.)
The Official Solicitor explained why the proposal to appoint a “Super Care Coordinator” was important:
OS: There is more than enough evidence that carrying on as we are is not working. It’s been a complete failure.
Judge: No, that there is a complete failure is clear. I think that’s right as a matter of law. So, is there anything for me, in my appropriate jurisdiction, to do today?
OS: It gives me no pleasure to say ‘I told you so’ at this hearing.
Judge: No, no, hands up! It’s extraordinary we’re still in this position. P is continuing to receive what we consider to be abusive care – and the court is in the extraordinary position of authorising that as being in her best interests because there is nothing else available. And now P has- the entire ward has an infection. There’s nothing I can do about that. If I were the hospital, I would start possession proceedings. The hospital has been extraordinarily compliant […]. I think this case is moving out of the COP and into the administrative court.
There was some discussion with counsel for the ICB about whether P should be moved to a mental health unit as an interim measure. The judge was clear that she doesn’t think it’s in P’s best interests to be detained under the Mental Health Act and placed in a psychiatric hospital but she did entertain the possibility that “carers attuned to Ps needs might be a better option than [The G Agency staff]”. Counsel for P’s siblings conveyed their strong opposition to that possibility, and the judge replied: “I urge your clients not to turn your faces against it completely. She will have to move out of where she is right now because of the infection. I urge them not to turn against it irrevocably before they’ve even gone to have a look”. This is an indication of how bad things have become at the hospital, since at a previous hearing Lieven J had said that a psychiatric admission would be “very counter therapeutic”, and that she feared that if P were to be admitted to a psychiatric hospital, “it may be a very long time till we can get her out again”.[4] It’s a significant turn-around that she’s now asking the siblings to give serious consideration to a psychiatric admission.
When the judge asked whether there was “any point in listing a hearing for the second half of September”, when she’s back from holiday, the OS thought that would be useful so as to get “something from statutory bodies as to what their medium-term proposal is. By then there will have to have been some proposal made about who is going to look after P and what’s going to happen”.
The next hearing is to be listed before Mrs Justice Lieven at 3.30pm on 15th September 2026, for one hour – and the judge proposes also to deal with a costs application from the OS if there is one at that hearing. Given the relatively short timescale, the September hearing is very unlikely to be the final hearing in this case – so, as Mrs Justice Lieven has recently been appointed as a new Court of Appeal judge, the final determination of where P goes next and the arrangements for her care will rest with a different judge, possibly (her name was mentioned in the hearing) the COP Vice President, Mrs Justice Theis.
The judge ended the hearing by saying: “I hope things get better. I struggle to see them getting worse at the moment”.
4. Reflections
It’s been a sobering experience to follow this case and to witness the dismaying series of delays, and now the alleged abuse, affecting a vulnerable woman. This sequence of events occurred despite devoted and highly efficient siblings advocating on her behalf, despite agreement between the parties that she should be discharged from hospital, and despite the efforts of two very experienced senior judges over the course of almost a year. It’s self-evidently a systems failure of spectacular proportions. I wish I could say it was “unbelievable” or a “one off”, but most of us with relatives enmeshed in the health and social care system find it only too familiar.[5]
The most shocking aspect of what has happened is (for me) the decision by the judge to continue to authorise The G Agency to care for P following the hearing of 28th July 2026, at which point, on the basis of the Position Statements I’ve seen from that hearing, there were sufficient “red flags” indicating that the care was (at best) inadequate and that P should not be discharged home with those carers in place. Of course, it is easier to see this with the benefit of hindsight, given the additional evidence of harm to P from The G Agency carers after 28th July 2026. I do understand the judge’s “remorseless focus” on the need to get P out of hospital promptly (which required an admittedly inadequate care team to remain in place), especially with the possibility of detention under the Mental Health Act in prospect, as P became increasingly dysregulated in hospital[6]. But by the hearing of 28th July 2026, and again at the time of the judicial meeting on 5th August 2026, the serious problems with The G Agency were very apparent, and it’s not surprising that Lieven J’s hope that they could be fixed by further training failed to materialise. Instead, the court left P exposed to potential further abuse. As a result, by the hearing of 21st August 2026, the judge seemed to be advocating detention under the Mental Health Act as possibly the least worst option for P, despite have previously expressed concern that this would be “very counter therapeutic” [7]
As the Official Solicitor points out, there have been a multitude of reports and investigations raising concerns that reflect what seems to have happened here: undignified and inhumane care; treating people not as individuals but as a collection of negative behaviours; not listening to disabled people and their families when they raise concerns; and not acting promptly when red flags are raised.[8] On this occasion, these systemic failures occurred while P’s welfare was actively being overseen by Mrs Justice Lieven – on her watch.
Finally, some reflections on ‘deprivation of liberty’ in this case.
At the hearing on 29th June 2026, the court determined on an interim basis that P is deprived of her liberty by virtue of her care arrangements in hospital, and authorised this pursuant to s.16(2) and s.4A(3) MCA 2005. At the hearing, in response to the application from the ICB and Trust, Lieven J said she was “not going to make a ruling on the applicability or otherwise of the Supreme Court judgment to the facts of this case”. Instead, given the situation at that point, which included the risk of P’s detention under the Mental Health Act, she considered it “necessary and proportionate” for P to be deprived of her liberty in hospital on an interim basis. She added: “I’m not going any further than that”. This DOLS authorisation expired on 21st August 2026 and I think (though I haven’t seen it recorded anywhere) that Lieven J must have approved its renewal.[9]
The judge had earlier stated (in the course of a hearing) that she hoped, once a care and discharge plan had been approved, to make a determination as to whether or not the conditions of P’s care and residence in the community were such as to constitute ‘deprivation of liberty’, and she commented: “It would be a perfect case for me to say it’s just not a deprivation of liberty given the decision of the Supreme Court” [i.e. in AGNI,]. The judge’s position on ‘deprivation of liberty’ is well known since she has famously taken an approach to deprivation of liberty (in [2024] EWHC 1690 (Fam)) that was not consistent with the Article 5 framework established in Cheshire West and her judgment on that matter was successfully appealed. In the (unlikely) event that new carers are in place so that P can be discharged home at the next hearing before Lieven J on 15th September 2026, it seems very likely that she will find (in line with AGNI) that there is no ’deprivation of liberty’ for P (despite the CCTV, restraint etc).
The ICB takes a different view: “In the event the court determines that it remains in [P]’s best interests to be discharged back home, the ICB considers that [P] is likely to be deprived of her liberty that will require the authorisation of the court under the MCA 2005, particularly given the level of restrictions in place, the continuous nature of supervision and the likelihood that she will raise objections to the care being delivered.”
The Official Solicitor “has not formed a concluded view as to whether P’s care at home engages Article 5” but does note that a care plan permitting three or four staff to restrain P on the floor, and the use of sedating medication, “may be closer to the paradigmatic police cell … than would ordinarily be the case with a package of care in a person’s own home”. Like many advocates for P post-AGNI, she turned from Article 5 to Article 8 and is: “quite sure that [P’]s Article 8 rights are engaged by the plans for her support, and the method of their implementation”. She “does not consider that the point has been reached when this court could sign off on her care arrangements as being in her best interests and conclude the proceedings”.
That last point, at least, is surely indisputable.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky (@kitzingercelia.bsky.social)
END NOTES
[1] “CPE” stands for Carbapenemase-Producing Enterobacterales – a ‘superbug’ identified as an increasing threat to public health internationally. There’s more information about the challenges associated with outbreaks of CPE in this (open access) scoping review: Healthcare workers’ experiences of caring for patients colonized with carbapenemase-producing Enterobacterales (CPE) in an acute hospital setting – a scoping review. Recent outbreaks in England are referenced in (for example) a description of the control measures in place in a cardiothoracic unit at the Royal Papworth Hospital in Cambridgeshire in June 2024 and a report from the Chief Medical Officer (2025) of an outbreak at a hospital in Greater Manchester.
[2] There are blog contributions about earlier hearings in this case from five different public observers (Kim Dodd, Amanda Hill, Elissa Novak, Sandra Preston, and Tim Sugden) as listed below. I’ve drawn on them (and in some cases the observers’ notes) in summarising events prior to the hearing of 21st August 2026. I am also grateful to the judge for ordering disclosure of the parties’ position statements (opposed, as usual, by the Official Solicitor) for the hearings of 28th July 2026 and 21st August 2026 which have greatly assisted with transparency. I requested the “Gardner documents” as an alternative (or addition) but they weren’t mentioned in court and I suspect they had not been prepared. The judge heard submissions and, in the particular circumstances of the case, considered disclosure of the position statements to be necessary for observers to understand the proceedings. Redactions were considered and not approved by the judge. Where I’ve used quotations from what was said in the hearings, these are based on contemporaneous notes (mine, or other observers’) and are as accurate as we could make them but are unlikely to be absolutely verbatim. Here’s a list of our previous blog posts about this case.
- Hearing of 3rd September 2025 (HHJ Hilder): Should surgery be delayed while the legal framework relating to capacity is established?
- Hearing of 11th February 2026 (HHJ Hilder): Fit for discharge and still in hospital five months later due to delay with eating and drinking plan
- Hearing of 12th May 2026 (Lieven J): More delay and increased risk to P
- Hearing of 29th June 2026 (Lieven J): The ‘fit for discharge’ story continues: 10 months on
- Hearing of 28th July 2026 (Lieven J): Fit to discharge or fit to section?
[3] The name of the hospital is protected by the Transparency Order (because it’s where P currently resides and receives care) so I’ve avoided naming the Trust. They are not a party, although they have been involved in ongoing Round Table Meetings and a representative has attended court hearings.
[4] As quoted in a blog post about the hearing on 29th June 2026 The ‘fit for discharge’ story continues: 10 months on
[5] See Reducing restrictions for a person deprived of his liberty: internet use, access to services and ensuring appropriate support in which Jenny Kitzinger says: “After my own sister, Polly Kitzinger, was brain injured in a car crash, I quickly realised that there were not just barriers to service provision, but also a maze of false promises, false starts and delays. As a family, we certainly learned about the need for persistence and attention to detail if Polly’s needs were to be met …” The case reported in Jenny’s blog was heard by HHJ Hilder, who also dealt with earlier proceedings in the ‘Fit to Discharge’ case reported in this blog post. Like Lieven J, she strives to achieve the best for protected parties and is aware of the “micro-management” (Lieven’s term) that is often required. The blog comments on HHJ’s “knowledge of how a person might fall between the gaps of service provision, her obvious awareness about how delays can occur, and her sheer attention to detail to ensure her order would be as effective as possible“. This approach is characteristic of both HHJ Hilder and Lieven J which make it doubly alarming that these two judges have been defeated in their efforts to ensure P’s undisputed best interests (discharge home) for over a year.
[6] The latest data recorded 2,130 people with a learning disability and autistic people in inpatient services. Of these, 1,030 (49%) had been there for more than two years, and 320 for more than ten years. In 2023, an investigation by The Independent revealed that 27-year-old Nicholas Thornton had been trapped in inappropriate settings, including psychiatric hospitals, for a decade, because NHS and social care services were unable to fund a place that could meet his needs in the community. Mr Thornton was finally granted a full community care package in 2024 and his own home, following the exposé. (“Fears patients with learning disabilities ‘will remain trapped in hospitals’ despite Mental Health Act changes”, The Independent, 19th December 2025)
[7] As quoted in a blog post about the hearing on 29th June 2026: The ‘fit for discharge’ story continues: 10 months on
[8] Out of sight – who cares (CQC, 2020); Baroness Hollins’ report My Heart Breaks 2023; Transforming Care: A national response to Winterbourne View hospital (DHSC 2013)
[9] The potential value to P of having the protection of DOLS in hospital is illustrated by the Official Solicitor’s observation that deprivation of liberty in hospital “requires that [P] is provided with ‘a suitable medical environment accompanied by real therapeutic measures with a view to preparing them for eventual release’, Rooman v Belgium [2020] MHLR 250”. She observes that there is still no proposal for P to receive individual therapy while she is deprived of her liberty in hospital and that the care being provided by The G Agency is “counter-therapeutic”.
Promoting Open Justice in the Court of Protection 