Action after invalid section

Both (out of county) section 2 medical recommendations are insufficient and the application is deemed invalid. RC wishes to re-detain. Do the RC or the hospital managers have to complete section 23 before the new application?

Code of Practice

35.13 If admission documents reveal a defect which fundamentally invalidates the application and which cannot, therefore, be rectified under section 15 of the Act, the patient can no longer be detained on the basis of the application. Authority for the patient’s detention can be obtained only through a new application (or, in the interim, by the use of the holding powers under section 5…). Unless that authority is to be sought, the hospital managers should use their power under section 23 to discharge the patient.

Reference Guide

31.20 Where an application suffers from a fundamental error, the application is of no effect at all.

31.21 If this occurs, the hospital managers or the RC should discharge the patient pursuant to section 23. It would then be open for the patient to be made subject of a report pursuant to section 5(2) or 5(4), which would allow detention for a limited time. During this time, authorisation for further detention can be sought through a fresh application.

Richard Jones Mental Health Act Manual
(Page 124)

If an admission document reveals a fundamental breach of law or procedure which is incapable of rectification under this section, either the hospital managers or the patient’s RC should exercise their power under s.23 to discharge the patient from the section…. If the patient is discharged from the section, he could be made the subject of a report under either s.5(2) or (4)….

If an application is found to be fundamentally defective, authority for the patient’s detention can only be obtained through a fresh application: see para 35.13 of the Code of Practice [above]…

What you must not have as far as is practicable, is any further potential period of unlawful detention. If you can get a fresh application completed immediately then fine, but if not you might need to use s.5(2), but of course that can only be used where there is no existing application in place, which is why consideration needs to be given to s.23 beforehand.
What was wrong with the med recs that led to the validity of the application being questioned?