Fit to discharge or fit to section?

By Kim Dodd, 4th August 2026

The hearing I observed on the morning of Tuesday 28^th July 2026 was the latest hearing in a long-running case (COP 13630253) that has been observed and blogged about several times before. At the last hearing in late June, as Elissa Novak explained in her blog (The ‘fit for discharge’ story continues: 10 months on), a plan was anticipated to be in place for P to leave hospital this week to return to her bungalow where she would be cared for by a team of (by then Makaton-trained) carers from the care provider team which has been supporting her in the hospital for the last week. This short blog aims to provide an update on the case in advance of the next scheduled hearing (planned for Friday 21^st August at 9.30am, unless an emergency hearing is required in the meantime).

As a quick refresher, P is a woman with diagnoses of mild learning disability, emotionally unstable personality disorder, functional neurological disorder, dissociative disorder and elective mutism. She was admitted to hospital in April 2025 where she has been ever since, despite nobody advancing any argument that it was in her best interests to be in that setting.

The time and date of this hearing had been agreed at the last hearing (which I’d also observed) only a month earlier, so I was quite surprised when it didn’t appear on the listings on the Monday evening. I emailed the court early the next morning and was told: ‘Many thanks for your email. The list has now been amended with this hearing added. I have passed on your request to observe this hearing to Her Ladyship’s clerk who will be in touch’. After some chasing, I finally received the link at 9.24am for the hearing scheduled to start at 9.30am.

The hearing started at 9.38am, and lasted for seventy minutes. The lack of progress since the last hearing was clear, and Lieven J’s frustration was palpable. One of the main issues now is that P’s bungalow is not considered to be in an adequate state for her to return to. On top of this, questions have been raised (by the OS, represented again in court by Victoria Butler-Cole KC, and P’s siblings) about the suitability of the care provider.

It seems these questions have been driven by:

• the carers’ failure to learn Makaton (despite this having been recognised as a fundamental aspect of suitable care for P)
• the carers failing to acknowledge or to implement the advice on how to avoid triggering P that has been prepared by P’s siblings, and
• a recent incident, on 20^th July, of restraint (3 carers holding P down) which the OS and P’s siblings considered disproportionate. This incident was captured by the CCTV and had been circulated to all parties, though it transpired that neither the judge nor the OS had seen the footage. The applicant ICB and LA had seen the CCTV and read statements about the incident and reportedly felt, on balance, that the degree of restraint used was proportionate. Lieven J asked for the Order to reflect that all parties should watch the CCTV footage.

Whilst the potential MHA assessment which had been the subject of debate at the last hearing was not mentioned explicitly (and I therefore assume it didn’t happen), Lieven J noted that P being detained under the MHA remained a strong possibility given P’s increasing dysregulation in the hospital setting.

P’s siblings (who again spoke to the judge directly at times, despite being legally represented) were clear that, despite their ongoing desire for P to return to her bungalow, their ‘profound concerns’ were based on a decade of lived experience, which showed that P’s return home had broken down rapidly. They are adamant that the new care providers are ‘the worst agency they’ve been involved with’ and report receiving somewhere between 50 and 100 distress calls each day from P in which she begs them to prevent her having to go home with those carers. Their view is that if P returns home with this care provider, then her quality of life at home would be no better than it would be if she remained in hospital.

Lieven J expressed sympathy for their concerns but emphasised that P is not easy to deal with in her current state and that there had also been concerns about the previous care provider. In her typically pragmatic style, Lieven J also pointed out that the pool of carers the provider pulls from is ultimately one and the same, and that without that care provider there was no other available agency. Lieven J expressed concern that any change of plan with respect to the care-provider would inevitably lead to a six week delay at a minimum, during which time P would be ‘within millimeters of being detained under the MHA’.

To ensure some real progress is finally made, Lieven J proposed that she would chair a meeting next week with the key people involved (but without lawyers; ‘I love lawyers dearly, but they won’t help’). The purpose of the meeting would be for the OS and P’s siblings to talk to the care provider about how a care package can be put in place.

The next hearing in this case is scheduled for 9.30am on Friday 21^st August, though Lieven J invited the OS to request an emergency hearing next week (first week of August 2026) should she (the OS) deem it necessary.

I hope to observe the next hearing and to be in a position to provide a further update on what is fast becoming (in my opinion) a case reminiscent of ‘Groundhog Day’, much to the detriment of P.

Kim Dodd has family experience as the daughter of a P in the Court of Protection and has previously blogged for the Open Justice Court of Protection Project. Having retired early from her own corporate career and studied for a Master’s of Law, Kim has developed her interest in law generally and particularly in the area of the law on coercive control. She is on LinkedIn (here).