Hoping someone can help
All parts of the CTO1 were completed in advance with a date for it to begin on 26/2/24. A ref S3 tribunal was scheduled for 27/2/24. Client decided that they did not want to contest at a tribunal as they were happy to go on to a CTO so we agreed to a ‘paper hearing’.
Prior to the CTO date (26/2/24) the RC changed his mind about the CTO and cancelled it (an implied right to do so is in the Jones manual guidance). We reinstated the full hearing and this went ahead on the S3 criteria.
The trust legal team have become involved and have insisted that for ‘continuity of paperwork’ the CTO (which the RC cancelled) be recalled and revoked by the RC, resulting in another referral for a tribunal.
Looking at the Manual and the code of practice our reading is that, as the RC cancelled the CTO prior to the date and time specified on part 3, the CTO did not come in to force and so the client has been continuously on S3, therefore the referral now is invalid. Does anyone have alternative view?
If the trust legal team are correct, then the tribunal decision that considered the S3 criteria will have to be set aside as the client would have been a recalled CTO patient at the time?
I recall that there were some arguments about this at the time the CTO statutory forms were being drafted.
Given that the patient could deteriorate between the time the CTO form was completed and the time it was due to come into force, you could take the view as Richard submits, that withdrawing the order is allowed and makes complete sense; or
you could take the view that because the recall power exists and can be used on the day that the CTO takes effect, there is nothing lost by waiting until that day, in order to keep the person from leaving the hospital.
Arguably it’s more advantageous for the patient if the latter view is adopted, because if a revocation follows, they will potentially get a Tribunal whatever changes of mind occur subsequently. I’ll admit though that in the past, I’ve always guided the RC to the former view.
If the trust legal team are correct then the patient has been on a CTO but unlawfully detained in hospital.
My instinct is that your legal team are right about the RC not being able to cancel a CTO once he has made the order, but I don’t know. When you tell the patient that he should obtain advice about that possibility, the legal position might become clearer. If the tribunal is asked to set aside its decision then the point would have to be considered.
Hi Jonathan
We are the clients legal team 
It looks like we will have to apply for the decision to be set aside and see what happens!
Cheryl
Hi Guy
Thank you.
It does seem that there is no clear answer!
Cheryl