With the new rulling information, what is the guidance regarding CTO.
P is placed in a 24hr care provision in borough B by borough A on a CTO: within the first 6 months he relapses, recalled to hospital and CTO revoked. He remains in hospital under s3 for a month and discharged back to same placement as previous before recall to continue meeting his Aftercare needs.
Which borough has the s117 Aftercare responsibility.
Any reference to the act/code will be helpful .
Aftercare responsibility will be unaffected by a CTO, including recall, as the section 3 powers will in effect have been continuous. A section 3 is not discharged when a CTO is made, it becomes in effect ‘dormant’.
The identification of the responsible body rest on the ordinary residence of the patient “immediately before being detained” on one of the qualifying sections (s117(3)).
Discharge from hospital to CTO does not end a s3, so the responsible aftercare body will continue to be determined by the patient’s OR immediately before the s3 detention.
This is an interesting question (and Steve’s answer is interesting too).
The idea of s3 being “dormant” during a CTO is a helpful way of understanding things, but I think is a red herring here. This is what I think happens:
- When you’re put onto the CTO, an aftercare duty begins as you “cease to be detained and … leave hospital” (s117(1)).
- When you’re recalled, that duty ends as you are “no longer a person who has ceased to be detained and has left hospital but rather a person who is detained and is in hospital” (Worcestershire, para 44).
- When you’re discharged from hospital again (whether onto a CTO or not) a new aftercare duty begins because you again “cease to be detained and … leave hospital”.
The question then would be where you were ordinarily resident when recalled, especially if the CTO had a condition to reside in borough B.
The Supreme Court in Worcestershire said this about the Shah need for the place to be adopted voluntary for settled purposes:
- We think it clear in principle and from the examples given by Lord Scarman that the circumstances in which a person will not be regarded as ordinarily resident in a place because the person’s presence there is involuntary are narrow and are limited to situations where the person is forcibly detained. Along with kidnapping and imprisonment, compulsory detention under the 1983 Act would fall into this category. On the other hand, the fact that someone has no other accommodation (or suitable accommodation) available to her in which to live does not prevent it from being said that she is ordinarily resident where she is living. The occupation of that accommodation is still adopted voluntarily in the requisite sense and the absence of any practical alternative only tends to confirm that her situation has the necessary degree of settled purpose to amount to ordinary residence. This situation may arise where, for example, a person dependent on a local authority for accommodation is only offered accommodation by the local authority in one particular place, as happened here on the first discharge.
If the patient lacks the relevant capacity:
- The test articulated in Shah requires adaptation where the person concerned is someone such as JG who lacks the mental capacity to decide where to live for herself. It seems to us that in principle in such a case the mental aspects of the test must be supplied by considering the state of mind of whoever has the power to make relevant decisions on behalf of the person concerned. Under the Mental Capacity Act 2005 that power will lie with any person who has a lasting power of attorney or with a deputy appointed by the Court of Protection or with the court itself. Applying this approach, JG’s residence in the area of Swindon was adopted voluntarily in the relevant sense, as it was the result of a choice made on her behalf to live in the accommodation that Worcestershire provided for her following the first discharge. Manifestly, her residence in that place was also adopted for settled purposes as part of the regular order of her life for the time being.
In the earlier case of R (Wiltshire Council) v Hertfordshire CC  EWCA Civ 712 the Court of Appeal decided that:
I consider it clear that where a person has been made subject to a hospital order with restrictions, then conditionally discharged, then recalled to hospital, and then conditionally discharged for a second time, for the purposes of s 117(3) of the Act he is still to be treated as “resident in the area” of the same local authority as that in which he lived before the original hospital order was made.
Maybe a relevant comparison with CTOs is that with conditional discharge the conditions are set and policed by the judicial or executive arms of the state. But I wonder whether the Supreme Court now would just say that the Court of Appeal got it wrong, as conditional discharge is nothing like being “forcibly detained”. My instinct is that CTO residence conditions aren’t compulsory enough to prevent your patient from becoming ordinarily resident in borough B.
Thank you Steve this is helpful
Very interesting: need to digest this after a morning coffee
Would this be the case if the person was recalled a number of times and after each recall discharged on a CTO? Thanks.
I don’t think the number of times it happens would make a difference to the correct approach. Steve would say that each time the s117 duty is unaffected on the basis that the s3 continues to exist alongside the CTO, and I would say that each time the s117 duty ends upon recall and revocation (when the patient is detained and in hospital) and a new duty begins on discharge (when the patient ceases to be detained and leaves hospital).
But are you comparing the situation where recall and revocation both happen (as in the original post above) with the situation where the patient is only recalled? I hadn’t thought of that before now, and it could make a difference to what I originally said. On one hand, the recall period is a purgatory between CTO and s3 and so, not being exactly s3, doesn’t end the s117 duty, and it makes sense for the brief recall period (like an informal or s2 admission) not to have the same effect as a full s3 detention. On the other hand, it could be argued that the association between CTO and s3 is strong enough for the recall detention to count as detention under s3. Now I need to know what everybody else thinks!
Thanks Jonathan . I’m aware of someone that was in hospital for a long period and discharged on a CTO. The person was then recalled to hospital, the CTO revoked and subsequently discharged again with a CTO. This happened a number of times and I think each time the CTO was revoked. I recall the speakers on the recent Essex Chambers webinar saying that if the person is on a CTO and ends up back in hospital it doesn’t count as a new period of detention for 117 purposes. Not sure though if that applies with repeated recall/revocation/discharge each time with a CTO. AMHP colleagues not sure either. Looks like this is one for our legal department to clarify. Thanks for your thoughts
Having thought it through some more, I think recall and revocation are definitely different.
- It’s transient and isn’t a fully fledged s3 detention.
- You’re still called a “community patient” (CTO patient) while recalled (see s17F(1) and s18(2A)).
- Recall is just part of the operation of the CTO. For instance, you get released back onto the same CTO (s17F(7)) and so recall doesn’t affect detention/renewal periods or tribunal eligibility.
- I agree that it doesn’t end the s117 duty.
- The effect of a CTO is to “discharge a detained patient from hospital” (s17A(1)): it suspends the s6(2) power to detain (s17D(2)(a)). When it’s revoked the s6(2) power is resurrected as if it had always been there (s17G(2)).
- Section 117 says the duty begins when you cease to be detained under s3 (or equivalent) and leave hospital, and the logic of the Supreme Court decision is that the s117 duty ends when you are back in hospital and re-detained under s3 (or equivalent).
- Discharge onto a CTO definitely triggers the s117 duty (it can’t even be ended during the CTO (s117(2)). So it’s definitely a discharge for s117 purposes.
- Revocation makes brings you back to hospital and you are re-detained under s3 (or equivalent). It is effectively a new s3: for instance, the timeframes for detention duration and renewal (s17G(5)) and for tribunal eligibility (s66(1)(cb)) begin from the date of revocation.
- So I think the Supreme Court decision means that revocation does end the original s117 duty.
Please tell us what your legal department say…
Thanks again Jonathan, that’s very helpful. Will update if legal give a clear response.
Interesting view on this. I am now wondering what it means for someone who is receiving s117 aftercare is detained under s2. If I have understood your view correctly the s117 duty ends when you are in hospital. This would mean the duty does not recommence on discharge from s2?
That scenario was mentioned in another topic (Can a hospital admission be defined as after-care?).
The s117 duty doesn’t end upon every type of admission to hospital – only those listed in s117(1), which are s3, s37, s45A, s47, and s48. I’d put CTO recall in the same category as s2/informal, and CTO revocation in the same category as s3.
Together with my colleagues at Edge Training I have followed this discussion closely, as we are receiving increasing numbers of requests for training on s.117. We were very interested to read Jonathan’s reasoned analysis. However (with thanks to Camilla Parker for pointing this out), his argument appears not to take account of s.17G(3) concerning revocation of a CTO):
The provisions of this or any other Act relating to patients liable to be detained (or detained) in pursuance of an application for admission for treatment shall apply to the patient as they did before the community treatment order was made, unless otherwise provided.
On our reading, this means that once a CTO has been revoked s.117 responsibility reverts to where it was immediately before the admission application which gave rise to the CTO (i.e. Steve’s position), and is unaffected by any accommodation the patient occupied prior to revocation. Hoping that helps.
To me, s17G(3) just means that the same legal provisions apply to the patient as before revocation. It means that patient is subject to s3, or s37, as before, and any other provisions that apply because of that. In the aftercare context that would mean that s117 applies and will involve calculation of aftercare responsibility on discharge. I don’t think that s17G means the factual situation is to be treated as though it had never changed: if the patient had become ordinarily resident in Area B then that’s still relevant to the s117 calculation.
Although I like the consistency of treating detention on revocation in the same way as a new s3 detention for aftercare purposes, I can see your point too, and can imagine a court being attracted to the certainty of repeated detention on CTO revocations never changing aftercare responsibility.
Out of interest, what’s your reason for saying it “reverts to” Area A?
- Revocation doesn’t end Area A’s aftercare duty, which applied during the CTO, so it continues after a second discharge.
- Revocation does end Area A’s aftercare duty but, when the patient is discharged a second time, by applying the Act’s provisions as they were before the CTO s17G(3) effectively deems the patient to be ordinarily resident in Area A even though in fact he is ordinarily resident in Area B.
- The retrospective nature of s17G means that revocation airbrushes the whole CTO (and Area A’s aftercare duty) out of history entirely, so that when the patient is discharged a second time the aftercare duty is calculated as if the first discharge had never happened.
Thank you for this discussion; however i am slightly confused if & when the s117 responsibility ends with patients on CTO following a revocation…
Scenarios make the Jones language easier to bring the point home.
P lives in a supported care provision in area B: his care under s117 is commissioned by area A. He was placed in the care provision on a CTO.
He has in the last week been recalled and CTO revoked in a hospital in area A (original home of the CTO). He is then discharged and returnes to same accommodation in area B.
- Did s117 end when revocation happened?
- Has are the responsibility for area A ended because on detention of s3 (awakening the CTO after revoke) his last address was in area B?
Thanks, Jonathan, for your very clear exposition. I follow your argument, and agree there is room for different interpretations of s.17G(3). However, I prefer my reading, that.the subsection applies inter alia to s.117(3), with the result that ordinarily resident ‘immediately before being detained’ refers to the original detention. Of your three options, therefore, I think I prefer no.3, i.e. you should calculate s.117 responsibility as if the CTO discharge had never happened, but no. 1 might equally apply. (I was wrong to say that s.117 responsibility ‘reverts to’ in my original post- I should have said that it remains with the area of residence prior to the original detention.)
In response to Esther’s current queries, I fear that- as you can see- the answers are a matter of debate. We won’t get a definitive interpretation until a court rules on it. It’ll be appropriate to make this clear in training etc.
In the meantime, in the real world I think local authority legal departments will have to pick one interpretation and see if it gets challenged…