Apologies for starters I am relying on a rather old Jones for information so it may be that later case decisions have intervened.
A Nearest Relative instructs discharge of patient detained under s.3. RC feels threshold of dangerousness is not reached and therefore cannot ‘bar ‘discharge. RC then approaches local AMHP team as the RC wishes to discharge patient under aegis of a CTO before the ‘expiry’ of the 72 hour period.
My primary question is this. Prof. Jones in his General Note states that s.23 provides for the absolute discharge of detained patients (inter alia). Is not a discharge under a CTO a ‘conditional discharge’ and therefore is not applicable to the discharge of a detained patient where Nearest Relative is instructing discharge?
As I write this question I also wonder, once RC concludes dangerousness threshold is not met, should discharge be effected immediately?
Even if a CTO were put in place within the 72 hours, it would fall away at the end of that period because the CTO relies on a suspended s.3 (or 37).
Even if a CTO is made, it will be brought to an end because of the NR’s discharge of the s.3.
The RC is not required to discharge in these circumstances and of course the NR could withdraw their order before the 72 hours is up; for example they might consider it unecessary if a CTO was being considered.
Not entirely sure what you mean about conditional discharge, but a CTO is definitely not such a thing.
Thank you for your reply Andy.
Thank you for your helpful response.
I appreciate that typically we see ‘conditional discharges’ with e.g. patients detained under s.37/41 and then discharged subject to conditions.
It may be that I am using an inappropriate phrase in describing a CTO as a “conditional discharge”, I think we all agree though that it is not an absolute discharge.
How about getting the the RC and NR to see if they are happy for a cto to be made, then the NR could withdraw the discharge request?
I agree with the answers given and the practical solution proposed above. Jones suggests that the NR can withdraw the order within the 72 hours (25th edition, 1-424) and that seems right. To illustrate the consequences, have a look at MP v Mersey Care NHS Trust  UKUT 107 (AAC), in which the Upper Tribunal noted:
It is common ground that a deferred discharge brings to an end a community treatment order made before the deferred discharge date.
Thus, both parties are in agreement that, if the Decision dated 19th February 2010 stands, the community treatment order dated 31st March 2010 came to an end on 6th April 2010.
Thank you everyone for your really helpful answers and suggestions