CTO1 commenced/completed by the RC - part 1 - and AMHP part 2 - around 2 months ago - was signed off by the same RC - part 3 - accidentally - for a patient who is unfortunately still too unwell to be discharged on to a CTO. He was meant to sign off another CTO1 for a different patient.
The MHA Office received the completed CTO1 today and it came into legal effect yesterday! Jones is clear in that there is only an implied power to cancel a CTO that has not come into legal effect and the Hospital Managers have no authority to reject a CTO1 once it is made/comes into effect - unless it it fundamentally defective - i.e. not signed etc.
The RC was advised that the only way forward is to consider recall/revocation, full apology, explanation of what has happened - including the fact that we will have to auto refer the case to the Tribunal at the point of any revocation. Is this correct?
Can’t point to any law or guidance to back this up, but I think it’s arguable the hospital managers could and should just treat it as fundamentally defective. Hard to think of anything more defective than a form signed entirely by mistake. Just because it’s signed probably doesn’t inevitably mean it’s a done deal - imagine if the forms had been deliberately swapped to deceive the RC, for example, rather than the RC just muddling them up. (Might be different if the patient had already been informed about it, but from what you say, that’s not the case).
On one hand the RC has validly filled out the prescribed form - the patient’s liberty is at stake, which courts have always taken of utmost importance when looking at these cases.
On the other - can it really be said that the responsible clinician & AMHP have made a valid opinion under S.17A(4) if they are not speaking about the subject of the form?
It wouldn’t put the patient at harm if they were technically recalled - their case would be referred to the Tribunal and they’d be able to immediately apply again as soon as they wanted to. One more FTT doesn’t put too much administrative burden on the hospital either.
If the form had been completed erroneously and the patient is now in the community. The balance now is on two folds: Equality Act (2010) and balanced against HRA (1998).
It is not compulsory that the AMHP have to see the patient face to face for a CTO1. But did they? If they did and were of the opinion that the patient understands what is required for them for the CTO1 and duly signed the form off in Part 2.
Then the AMHP must have thought the patient can be provided with community treatment. Before anyone recalls the patient. The questions I would be asking is: Is the patient complying with the treatment? Is there an improvement in their mental state and what are the risks occurring?