Has any reader seen CTO patients recalled “out of area”?
I don’t know what happens in practice, but the Act was deliberately designed to allow that. It’s one of the reasons s17F provides a mechanism for transferring recalled patients from one hospital to another.
I don’t think there is any published data on the proportion of recalled CTO patients taken to a unit that was not designated their responsible hospital, but my gut says this is very rare.
It may be lawful to recall them to a different trust, and it may be lawful to recall them to a mental health clinic (without beds), but it is rarely, if ever, practicable.
Often recalled CTO patients will wait some time or a bed to become available at their “responsible hospital” while they are “overtaken” by newly detained patients.
If you think I am wrong, please respond. Does anybody have the numbers?
The policy among certain Trusts that I cannot name is to have cots - with removable labels on um. Bed-U-Are - you’re admitted. End off. Simple innit.
I have always understood that the meaning of ‘hospital’ within the MHA meant a place which had the necessary registration to detain someone. This would preclude recall to a facility that could not. Have I been wrong for the last thirty years? It is entirely possible… I look forward to finding out..
Definitely doesn’t mean that, I’m afraid.
The definition of hospital in the MHA existed long before NHS providers had to register, and wasn’t changed to include registered status.
So detaining someone in an unregistered hospital is potentially an offence under the Health & Social Care Act 2008, but doesn’t automatically make it unlawful under the MHA.
Lots have changed over the 'last thirty years’, so you are right to wonder. It’s possible to inadvertently keep an inherited understanding - or ones propagated by cultures - while the law changes in the background. I see it ‘all the time’. And the law doesn’t care if individuals don’t know what’s what or what’s changed.
The following is not bound to be 100% correct and not because I get something wrong - means that I am guilty of using AI. Apparently humans make errors too, and have done so for thousands of years.
In essence, a “hospital” for MHA detention purposes is any NHS or CQC/HIW-registered independent institution that receives and treats people suffering from illness (including mental disorder), and which has inpatient facilities capable of providing appropriate medical treatment to detained patients. The definition is deliberately broad to encompass the range of institutions eg. NHS trusts, foundation trusts, and independent providers that operate as part of the mental health system in England and Wales.
First - what is not a hospital for these purposes?
- A care home (even if it provides nursing care for those with dementia) is not a “hospital” — it cannot lawfully detain under the MHA.
- A person’s own home or private dwelling.
- A police station
- Prisons are not hospitals - nor is a healthcare wing.
I’m not saying that everybody on these forums does not know the above. I am only ensuring that some lay people in the public domain who are not ‘professionals’ and who access these forums, know what is not a hospital.
The NHS Act 2006 definition (s. 275(1))
Under section 275(1) of the National Health Service Act 2006, “hospital” means:
(a) any institution for the reception and treatment of persons suffering from illness,
(b) any maternity home, and
(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation,
and includes clinics, dispensaries and out-patient departments maintained in connection with any such institution.
Caution: I do not say or mean that someone can be placed on a S5(4) or S5(2) in an outpatient department or while visiting a hospital pharmacy waiting room. The law in E&W often starts off with a ‘general position’ and then ‘for the purposes of’, creates specificity.
Second - complexity
The situation is more complex, you may not be surprised to learn or know.
The definition of “hospital” for MHA detention purposes is assembled from three statutes working in concert. Section 275(1) of the National Health Service Act 2006 supplies the core meaning: an institution for the reception and treatment of persons suffering from illness. Section 2(2) of the Care Standards Act 2000 extends that core by capturing any establishment whose main purpose is the psychiatric treatment of mental disorder, even if it does not resemble a traditional hospital.
Section 145(1) of the Mental Health Act 1983 then ties the two together, declaring that both NHS Act hospitals and CSA 2000 registered independent hospitals and clinics count as hospitals for all purposes of the MHA including, crucially, the detention of patients.
The result is a deliberately broad definition that encompasses NHS trusts, NHS foundation trusts, and CQC- or HIW-registered independent providers alike, ensuring that no facility providing inpatient psychiatric treatment escapes the reach of the Act.
Recall
Recall under a Community Treatment Order (CTO) is to a hospital. Section 17E(1) of the MHA 1983 states:
The responsible clinician may recall a community patient to hospital if in his opinion—
(a) the patient requires medical treatment in hospital for his mental disorder; and
(b) there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose.
And if, following recall, the patient needs to remain in hospital beyond 72 hours, section 17F provides for the CTO to be revoked; which effectively returns the patient to the position of a detained inpatient under the original section (S3, S37).
So- it looks like you agree with me Russell? I think it would be pretty out there if it was possible to lawfully detain someone under the MHA in a hospital which could not lawfully detain them…
The effect of those rather convoluted provisions is that the MHA permits detention in:
-
any NHS hospital in England and Wales;
-
independent hospitals in England as long as they are registered for the assessment and/or treatment of mental disorder;
-
independent hospitals in Wales which are registered to provide treatment and/or nursing for patients detained under the MHA.
So it is only for independent hospitals in Wales that being registered to detain is required to comply with the MHA.
From what I can remember, this was a deliberate decision, so that oversights or mistakes in registration wouldn’t result in patients having to be discharged or moved in cases where it wasn’t clinically appropriate.
I don’t think there’s anything inherently contradictory about this. It’s akin to a situation where you have perfectly competent surgery in a hospital that turns out not to have been registered to perform it. The hospital’s broken the law and can be prosecuted by the regulator, but it doesn’t mean you have any claim against the hospital for operating on you illegally.
There is possibly an argument (which I don’t think has ever been tested in a court) that it would be a breach of Art 5 ECHR, and therefore the Human Rights Act, to detain someone in an unregistered hospital because it was not “in accordance with a procedure prescribed by law”. But I doubt such an argument would have much force
I am afraid to agree with anyone. I disagree with more people than those I may be inclined to agree with.
The law is there for everyone to read and find the means to understand it.
The trouble you may have spotted in these forums and many other circles in real life (offline) is that everybody is entitled to their own opinion. Opinions are supposed to be based on logic and evidence. Good luck with that. Cultures rule minds - and minds don’t even know when they are being ruled by cultures.
There are three sorts of things from my experience:
- Being outside the lawful behaviour - very mild
- Acting unlawfully - a sort of moderate concept.
- Acting illegally - which is taken by a lot of people to mean ‘criminal’ - but in reality could also be breaching ‘civil’ law.
Everyday doctors and many other health service staff are acting outside of lawfully expected behaviour. Acting unlawfully or outside of the law does not necessarily mean ‘illegally’, I have come to understand. If an entity gets caught and ruled on, then more likely the act has been proved to be illegal.
How may people are driving outside of lawful expected behaviour right now? Many. And so, many are not caught. That’s the model in many health services: Roll the dice until caught. If you need evidence read up Pubic Inquiry reports and Coroner’s PFDs. Study the Ockenden Report first.