In a hearing to renew a CTO, two of the panel agreed to renew the CTO as they felt that it was in their best interests. One of the panel disagreed that it was necessary for the RC to have the power of recall. What is the correct interpretation of 'necessary?
As you suspect, it’s the usual use of the word. “Necessary” in AM v SLAM [2013] is helpfully defined as “in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures”. It’s a high bar. The highest bar, in fact.
The objective for CTOs is to ensure the person remains well and stays out of hospital. In determining whether it is necessary, the panel should have regard to the proximity and severity of any relapse - LW v Cornwall Partnership NHS Foundation Trust [2018] UKUT 408 (AAC) and s.72(1A).
I work on the assumption that there are two reasons why recall might be necessary (and often there will be a balancing exercise between the two):
- Speedy power of recall. Why would a Mental Health Act Assessment not suffice?
- Compliance with treatment plan. Without the auspices of the CTO - will the patient continue to engage with professionals and take medication?
The RC retaining the power of recall could be both necessary and in the patient’s best interests. However, just because it is in the patient’s best interests, that does not automatically satisfy the necessity test.