RC barring s3 discharge then putting patient on CTO


If an RC bars a NR request for discharge of a S.3 patient, then puts the patient on a CTO before the Managers have reivewed the Order, does the Managers review have to still go ahead?

After a barring, the Managers don’t have to review; only consider whether or not to review, so in this case it might be considered unnecessary.

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I agree with Guy, it isn’t strictly necessary to hold the Managers review. You don’t say what the time lag is but I’d be querying why the RC felt it was necessary to bar the NR request, with its criteria that the patient would be dangerous if discharged, if they were then going to use a CTO.

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That might even be a reason, having considered it, to hold a review.

The dangerousness criterion also applies to CTOs, so arguably the panel should apply that. I can’t copy and paste from the Code of Practice on the mobile phone, but see paras 38.20 and 38.21.

The RC had to bar discharge in order to start the cto.

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Yes quite. The most charitable interpretation would be that the RC believed, and still believes, that the patient would act dangerously without a CTO. A more cynical interpretation might be that the RC barred discharge without proper or any consideration of dangerousness, just to get his own way on the CTO. There’s definitely something for the hospital managers to explore.


If I were the Hospital Managers, in this case I would consult the patient to seek their view and if they did not want a review, a panel would not be convened.

As others have already stated it would be germane to know what the time lag was between the RC issuing the barring order and then deciding to discharge under a CTO.

The dangerousness criteria are not expressly defined. Jones states as follows

“Dangerous. This is the sole reason for preventing discharge. In the context of a person being dangerous to others, the Butler Commission equated dangerousness with a propensity to cause serious physical injury or lasting psychological harm’ (para 4.10). As the danger can relate to a patient, this term encompasses the danger of self-harm.”

It is generally accepted that the dangerousness criteria to block an instruction to discharge are at a much higher bar than the ‘safety criteria’ which are applied when considering whether to make an application to detain.

In considering whether a CTO is appropriate, s.17A(5) allows for RC to apply for CTO where s/he is satisfied that (s.17A(5)(c))

subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;

Clearly if the RC believed that the client would be in any way dangerous if discharged then they would likely find it difficult to argue that s.17A(5) (c) can be met.

As an AMHP I would have to ask where was the AMHP in this process and what consideration did they give to the above when agreeing the CTO.

s.66(1)(g) allows for the NR to apply to a MHT where RC has blocked an instruction to discharge. Given that the CTO is founded on the on-going authority to detain under s.3, would a MHT not consider it appropriate to hear an application appealing the barring order. If the MHT takes place and discharges the s.3 then the CTO will fall as it only exists while the authority to detain continues.

Alternatively s.23(1A) allows for an instruction to discharge a “community patient” and that said application (unless blocked by RC) expunges both the CTO and the authority to detain for treatment.

s.25(1)(b) states

“no further order for the discharge of the patient shall be made by that relative during the period of six months beginning with the date of the report.”

Does this mean then that the NR cannot issue an instruction to discharge the CTO for six months from the date of the barring report because they had already issued an instruction to discharge the s.3?

Yes, the NR would have the usual 28 days to make an application and the tribunal, applying the same principles as with applications by patients, would just hear the case based on the CTO criteria (including dangerousness under s72(1)(c)(v)).

The way s25(1A) applies s25(1) to community patients isn’t entirely clear, at first glance anyway. You could argue that the two types of discharge order (detained vs community patient) are sufficiently separate, and that “discharge” for each is different, so a separate six-month prohibition would apply to each type – or you could argue that the two types of discharge order are treated the same so the six-month prohibition applies to the patient no matter whether detained or on a CTO. I think the second option is probably right.