The ‘fit for discharge’ story continues: 10 months on

By Elissa Novak, 15th July 2026

In April 2025, a woman with diagnoses of mild learning disability, emotionally unstable personality disorder, functional neurological disorder, dissociative disorder and elective mutism, was admitted to hospital. In September 2025, she had surgery and was soon afterwards declared medically fit to leave. But the discharge did not happen. Instead, the case became mired in the unresolved practicalities of getting her home resulting in a series of increasingly urgent Court of Protection hearings.

Her siblings had been trying throughout to make the people around her understand who she is and what she needs. During a hearing on the 5th June 2026, her sister told the court that their lives had been “completely changed” by what had happened (see the previous blog post  “Fit for Discharge for the last 8 months”).

By the time I observed the next hearing about three weeks later, on Monday 29th June 2026, everyone appeared to agree on the path needed to get her home. But after months of delay, another risk, this time detention under the Mental Health Act 1983, was in danger of overtaking the plan entirely.

This hearing, like the one before it, was before Mrs Justice Lieven. It had been due to start at 2pm, but an administrative error meant it had appeared in the public listing as starting at 10.30am. In the event, it began at 2.30pm, with Lieven J commenting that she had received the draft order “literally as [the case] was called on”.

There were 27 people on the link, including observers and representatives for the parties: Aswini Weereatne KC for Suffolk County Council; Anna Bicarregui for P’s siblings; Tor Butler-Cole KC for the protected party, via her litigation friend the Official Solicitor; Rhys Hadden for the ICB and Essex Partnership; Steph Collier for the Hertfordshire Partnership NHS Foundation Trust; and a representative for the hospital where P is currently an inpatient.

Proceedings began with something approaching good news. Mr Hadden, summarising where things currently stood, identified the headline points. A new care provider had been identified and would begin shadowing P in preparation for discharge. Progress had been made towards agreement on CCTV and body-worn cameras and, most significantly, there was now a proposed discharge date during the week commencing 27th July.

It became apparent at this early stage of the hearing that Lieven J had no intention of allowing valuable court time to disappear into lengthy explanations. When Mr Hadden began to explain the background to the proposed CCTV arrangements, she stopped him. “You don’t need to give me any of the reasons…I’ve read the papers.”

Mr Hadden then introduced a new complication. Since the last hearing, a Mental Health Act assessment had been requested by the hospital, creating a very real risk that P could face further prolonged detention in hospital. The parties, he said, wanted the court to authorise, on an interim basis, P’s deprivation of liberty in hospital in the hope that if present restrictions were approved the Mental Health Act assessment would become “redundant”.

Lieven J fixed immediately on the proposed discharge week. She would “very, very much prefer” P to leave hospital in the week commencing 27th July, as she would still be available to hold a short hearing afterwards “just to see how things are going” as she had “a distinct feeling that the moment I’m off the job things might not happen”. Next, she moved into the “granular detail”, to check that the parties were not merely saying they agreed “for the sake of the hearing” before “reneging later”.

The first question was whether there was a clear plan leading up to the week of 27th July. Mr Hadden said the new care provider would need a nurse to begin observations and that P would need a social story to help her become accustomed to the idea of a new care agency. Lieven J asked if thought had been put into how P would be informed, and apologised for “micromanagement” but said it felt necessary.

She noted that P wanted to leave hospital but was scared of change and could become dysregulated very easily. The proposed solution was a meeting with P’s siblings and those representing her, to work out how she should be told. The new care provider would need to begin observations, train staff in Makaton and prepare psychological strategies to support P through the move. Anna Bicarregui, for P’s siblings, said they were keen for Makaton training to take place and did not understand why it hadn’t yet started. Lieven J requested “less chat and more action” and instructed the parties to draw up a dated plan that afternoon.

This was my first time observing Lieven J, and if it’s permissible for observers to pick a favourite judge she might just be mine. Direct, practical and plainly impatient with delay, she consistently kept proceedings focused on P. This instinct was evident a few minutes later, during what might otherwise have become a drawn-out discussion about the logistics of installing CCTV in P’s hospital room. Mr Hadden began to explain that the timing depended on the hospital estate team being able to install the equipment. “Well, it will happen this week,” Lieven J replied. “To be frank with you, I could do it on Amazon this week. It’s not rocket science.”

Mr Hadden then briefly attempted to explain that fixed CCTV in a hospital room was not quite the same as buying domestic equipment online.  “No, no,” Lieven J interrupted. “I understand…they could do it in two days.”

Lieven J then turned to the safeguards that would have to sit around CCTV. She felt it had advantages over body-worn cameras as it was less easy to delete footage, could not be switched on and off at will, and would record the wider context of what happened in P’s room. But those advantages depended on the footage actually being preserved.

Mr Hadden suggested adapting the existing body-worn camera care plan, but Lieven J was clear that this would not do. CCTV needed its own protocol, particularly because P might become dysregulated when she learned about the camera. Tor Butler-Cole KC for P via the Official Solicitor, added that there should be provision for footage to be kept for longer if there was an incident or injury. Lieven J wanted to avoid “critical incidents” being “randomly deleted” and agreed that there should be an automatic storage period and a process for preserving footage beyond that if anyone said something had happened.

On the deprivation of liberty, Lieven J made it clear that she was  “not going to make a ruling on the applicability or otherwise of the Supreme Court judgment to the facts of this case”.  On the facts before her, she considered it “necessary and proportionate” for P to be deprived of her liberty in hospital on an interim basis: “I’m not going any further than that.”

Mr Hadden then returned to the Mental Health Act assessment, explaining that it had been triggered following increasingly serious incidents, particularly one on 22nd June which had led to an emergency protocol meeting.[1] The hope, he said, was that if the court authorised the current restrictions and with a clear discharge plan, the public bodies party to the case might agree that the assessment was no longer necessary. Lieven J responded sharply to this, telling the parties that if they proceeded with a Mental Health Act assessment and sought to make an application, she would expect the Official Solicitor to consider judicial review. She told Ms Butler-Cole KC that she was sitting in the Administrative Court that week, and any such application could be directed back to her.

Mr Hadden then moved to “restrictive practices”, a phrase that was quickly picked up by Lieven J, “restrictive practices, do you mean restraint?”. He did, but he was also referring to PRN medication, including lorazepam, which had been given to P on a regular basis and which, he said, had caused anxiety among professionals because of the prolonged use of restrictions without lawful authority. Lieven J was visibly unimpressed. There was no medical report before the court, no explanation of contraindications and she was firm that she would not authorise medication under Article 5 as this “was a matter for clinicians”. When Mr Hadden tried to explain that the medication had already been prescribed, Lieven J stopped him again. “I don’t care, Mr Hadden…it’s not a matter for me. Do not use the High Court as a veil of respectability for clinical judgements.”

Lieven J then returned to the draft order, which she had only received as the hearing was called on. She felt the provision was too general. If the court was going to authorise restrictions on P’s liberty, the order needed to be clear about what those restrictions actually were, and in particular to make clear that any physical restraint must be the minimum necessary. Mr Hadden suggested an appendix setting out the proposed restrictions, drawn from the local authority’s evidence. That was agreed, until he added that it included PRN medication. “Well take that out,” Lieven J said. She was content for the order to record, by way of recital, that P had been receiving medication because clinicians considered it clinically indicated, but she repeated that she was not authorising it and emphasised that it was not appropriate for the High Court to authorise medication without a full medical report and explanation.

It was agreed that the order would authorise deprivation of liberty in hospital only on a carefully limited basis, with the detail needing to be properly set out in a further hearing before discharge. Mr Hadden said the court would need to return to the issue of P’s deprivation of liberty in the community prior to her discharge from hospital; specifically, whether CCTV should be used in her home.

The new care providers had indicated that body-worn cameras would be needed, but had not yet reached a view on CCTV in the community. Mr Hadden also raised that P had asked to meet the judge. Lieven J said she had considered suggesting it herself at the last hearing, but she could not use Makaton and was concerned that this might dysregulate P. There was also the practical problem of arranging a visit before the proposed discharge week and it was later agreed that a remote meeting between Lieven J and P and her siblings would be arranged.

A timetable was then agreed: care planning documents by 20th July, a professionals’ meeting that same week, and a further remote hearing on 28th July at 9.30am, with the expectation that P might then be discharged on 30th or 31st July. Before moving on, Lieven J returned briefly to CCTV, making clear that her opinion was that fixed CCTV was preferable to body-worn cameras. She felt that people could forget about CCTV, allowing ordinary relationships whilst body-worn footage, was “very intrusive” and would almost physically stand in the way of a normal relationship.

Aswini Weereatne KC for Suffolk County Council, then raised the question of physical restraint, inviting the court to authorise the current care provider’s intervention plan. Lieven J said that would be “wholly inappropriate” as she had not gone through it line by line, and was not in a position to decide whether it fell within Article 5 or was “sensible or flawed”. The plan itself could be referred to in a recital, but the order itself would need to contain “standard wording” that physical restraint could be used only as a last resort and only where absolutely necessary and proportionate.

Anna Bicarregui, for P’s siblings, said there had been real progress in discussions before the hearing and they were grateful for her indication that CCTV was preferable to body-worn cameras. If filming was to happen at all, CCTV had been P’s siblings’ choice as it was “infinitely preferable” to P being confronted by carers wearing cameras.

Lieven J pressed the importance of P’s siblings being fully involved in how the move was communicated to her. Lieven J said that though she had never met P and only had “the most superficial” knowledge of her, from the papers she suspected that P became dysregulated when she was frightened or felt out of control. Her siblings knew her best and were “much more likely to understand her triggers than any of the professionals”. Ms Bicarregui agreed, referring to an occasion when one of P’s siblings had calmed her by tracing figures of eight on her hand. Lieven J then addressed everyone on the call saying that the next few weeks would be difficult for P, and therefore difficult for the professionals too, but there was “no point blaming people” and that for the next four weeks, everyone’s focus should be on getting P out of hospital.

Ms Butler-Cole KC, asked for the statutory bodies to confirm by the following day whether they still wanted it to go ahead with the Mental Health Act Assessment. If they did, yet more work would be needed to prepare P, including another social story explaining the assessment itself. Lieven J queried whether the hospital intended to “shift her to another hospital and psychiatric unit”.  Ms Butler-Cole said that would be the outcome if an application succeeded, and that P would not do any better in a psychiatric hospital saying that if things unfolded this way she “may never leave”.

When the Trust representative addressed the court on behalf of the hospital, she explained that the request for a Mental Health Act Assessment had followed a meeting of the public bodies involved in P’s care after increasing incidents, described as “violence and aggression”. The hospital had made the request because it was the body holding P, although she understood it to have been a joint clinical decision.

Lieven J was careful not to dismiss the hospital’s concerns. She understood that there had been a very difficult incident and that the hospital had a duty to protect its staff. But said she felt strongly that a psychiatric admission at this stage would be “very counter therapeutic” for P, and feared that if P ended up in a psychiatric hospital now, “it may be a very long time till we can get her out again”. The possibility remained that the request could be withdrawn, or that the AMHP might decide not to take it forward after seeing the court’s order.

The final substantive issue was the eating and drinking plan, and questions around a professional report which proposed P be discharged with an NG tube in place. Lieven J warned the parties “don’t let the best be the enemy of the good”, saying that some of the things the report sought might be achievable, some might not, but none of that should be allowed to block “the big picture”, which was getting P home. She said there were risks with discharge but also in P staying in hospital, where there was a real possibility that she would end up detained under the Mental Health Act. She understood that public bodies were nervous about carrying risk, and that there was an understandable desire to place it “firmly in the lap of the High Court”, but everyone appeared to agree that it was in P’s best interests to go home and she did not want was a return to “a superficial risk averse approach” in the final weeks.

Mr Hadden then updated the court on efforts to identify an individual therapist to work one-to-one with P. The difficulty, he said, was that the person would need to be Makaton-trained, and such support did not currently exist within the service. It was unlikely to be in place before discharge, but the hope was that it could begin once P was home. In the meantime, P’s siblings would be involved, and the new care provider would be given psychological strategies they could use at carer level.

The next hearing was then fixed for 28 July at 9.30am. After thanking everyone for the work done to reach such a high level of agreement, Lieven J closed the hearing.

Reflections

Observing this case, I was very aware of the larger picture that P’s case sits within. The policy ambition, for more than a decade, has been to improve community support and reduce reliance on mental health inpatient care for people with a learning disability and autistic people. NHS England’s figures for May 2026 show how far that ambition remains from being realised. The latest data recorded 2,130 people with a learning disability and autistic people in inpatient services^. Of these, 1,030 had been there for more than two years, and 320 for more than ten. At least 1,920 were detained under the Mental Health Act 1983^.

P’s case shows how easily a person with learning disabilities can be pulled towards Mental Health Act detention. All parties seemed to accept that community care would be best for P, and that the longer she remained in hospital, the more distressed she was likely to become. That is now what appears to have happened. Her distress has increased, the restrictions around her have increased with it, and the fact of that distress has helped trigger a process that could lead to long-term inpatient detention under the Mental Health Act.

This is why I admired Lieven J’s handling of the hearing. She did not minimise the risks of P going home, the pressure on the professionals caring for her or the hospital’s duty to protect its staff. But she also recognised that delay and escalating restrictions carried their own risks, and might in the end be far more damaging to P than the risks everyone was trying to avoid. By the end of the hearing, it felt as though there was still a great deal to do, but also some momentum towards getting P home. I hope she will be able to do so.

Elissa Novak is an unpaid carer to her son and studies Law part-time with the Open University through its Carers’ Scholarship Programme.

[1] _{I was not clear where the request for an assessment had come from. I did request the case summary, chronology of relevant events and issues for determination prior to the hearing, in accordance with the Court of Appeal’s guidance in Gardner (Re Gardner (Deceased) [2026] EWCA Civ 640, but these documents were not been provided.}