My understanding from para 29.61 of MHA code of practice and Jones’ notes on s17F (6) is that back to back CTO recalls are not lawful i.e a new CTO recall used to keep a patient in hospital if the 72 hours of the first recall lapses. However, is there anything stopping a fresh s3 assessment if it seems that the patient is clearly deteriorating? Will a s3 application supersede an existing CTO? or is there another way round safeguarding the patient without having to let them go back into the community?
Perhaps I’m being thick, but if there’s time to carry out a s3 assessment before the 72 hours is up, surely there must also be time for the responsible clinicians and an AMHP to consider revocation of the CTO ? (Revocation returns the patient to s3 detention, but without having to make a new s3 application).
Once a CTO is in place, the following actions can be taken:
The patient can be recalled to hospital for up to 72 hours;
Once recalled, the CTO can be revoked, which resurrects the detention;
Alternatively, once recalled, the patient can be released back onto the CTO (which would automatically happen after 72 hours unless the CTO is revoked);
The patient can be discharged from the CTO at any time.
I read my question and realised I was unclear. The issue is that the 72 hours recall period has lapsed so the RC then recalled the patient again whilst still in hospital so the patient is on their 2nd consecutive recall.
My understanding is that you cannot extend a recall period with another recall therefore a revocation subsequent to the second recall will not be lawful. In this circumstance, can a s3 assessment be done to detain the patient or is the only immediate option to discharge back into community?
If the Revokation assessment does not happen within 72 hours of return to the hospital then the patient is automatically in hospital but on an informa basis. The CTO remains in place, at that point the RC can the complete a fresh recall. This is not unlawful. Its not best practice but all sorts of situations can arise that could cause this to happen. Its rare but its possible.
The Act doesn’t forbid a new s3 application being made for someone already on a CTO. So, in the circumstances, that does sound like the safest option. It would automatically bring the old s3 (and therefore the CTO) to an end (s6(4)). Can’t think of another option - s5 holding powers are not available. But it wouldn’t, of course, make the intervening detention under the purported second recall any more legal.
Ages ago I raised consecutive s5(2) detentions with an RMO and this was essentially his reply. He also said he’d rather be in the High Court than the coroner’s court, which it turns out is a common phrase. Consecutive CTO recalls are similar. If the RC has cogent reasons for not following the Code of Practice then it’s probably fine. But nobody really likes “probably” so I think I agree with Richard on re-sectioning.
For what it’s worth, I suspect that successfully justifying consecutive CTO recalls as lawful - as opposed to sensible - would be (even) harder than for s5, because of the unusually explicit wording of s17F:
(6) If the patient has not been released, nor the community treatment order revoked, by the end of the period of 72 hours, he shall then be released.