Validity of CTO recall and revocation where statutory forms completed out of sequence

Law and practice Mental Health Act
1

I would welcome views on the legal validity of the following scenario concerning recall and revocation of a CTO:

  • Patient subject to a CTO is admitted to the ward informally.

  • Decision is made during ward round to recall the CTO.

  • CTO3 is completed at 10:00 but is not served on the patient at that time.

  • CTO4 is completed by nursing staff at 11:30 the same day (this timing is intentional rather than a clerical error).

  • CTO3 is then served on the patient at 14:00 that afternoon.

  • CTO5 is completed the following day, approximately 20 hours after service of the CTO3.

There are differing views locally as to whether the revocation is lawful, given that the CTO4 was completed before the CTO3 was served.

Key question:

  • Does completion of a CTO4 prior to formal service of the CTO3 render the revocation invalid?
2

Not aware of any case-law on this. But I’d say the revocation was valid, because it happened after the patient was given the CTO3.

The power to revoke is in s17F which applies to

“… a community patient who is detained in a hospital by virtue of a notice recalling him there under section 17E above.”

The CTO3 is the notice of recall and is effective once it has been given to the patient.

The CTO4 is more of a formality - a record, not an instrument with any legal effect of its own. Being completed prematurely is a mistake (and, depending on what actually happened, possibly evidence suggesting the patient was unlawfully detained for several hours), but doesn’t invalidate the recall itself.

3

This response is not advice even if so construed. I made reasonable assumptions based on the reported facts. If the reported facts change my analysis may change.

Detailed study is required of:

  1. MHA 1983(Amended 2007) [hereafter MHA1983]: S17D to G
  2. The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 [hereafter MHR2008]: S6

The following was constructed in Typora (which is not AI software). I think the situation at first glance appeared simple. Initially I was minded to think that the CTO4 issue was a minor administrative glitch. I spent a considerable amount of time with the issue as it was relevant to my CPD. My analysis based on the rules of logic, arrived at a different view. No one ‘needs to be a lawyer’ to follow the logic.

Points first summary:

Legal element Conclusion
Validity of CTO3 service at 14:00 Valid
Validity of CTO4 completed at 11:30 Void ab initio
Existence of a fresh CTO4 after 14:00 Not stated in the reported facts
Compliance with Regulation 6(3)(d) MHR2008 Failed
Ability to prove start of 72‑hour period Not possible without a valid CTO4
Ability to prove CTO5 was within 72 hours Not possible
Revocation (CTO5) Invalid
Application of section 17G Does not apply
Patient’s legal status Community patient subject to CTO

Conclusion: The revocation is unlawful.

The patient was never lawfully detained under the 72-hour recall period, and therefore the Section 3 detention was never re-enacted.

The CTO4 is not a mere formality. Regulation 6(3)(d) MHR2008 imposes a mandatory duty on hospital managers to record the start of the 72‑hour recall detention period in CTO4. That record must be made “pursuant to” a served CTO3. A CTO4 completed before the CTO3 is served is void ab initio. It cannot perform the statutory function of fixing the start of the 72‑hour period. Without a valid CTO4, the detaining authority cannot prove that the CTO5 was completed within the 72‑hour window. The revocation is therefore invalid. Section 17G does not apply.

More detailed explanations

Issue 1

Patient subject to a CTO is admitted to the ward informally.

Law:
A Community Treatment Order (CTO) is made under section 17A. It does not authorise detention unless within the 72 hour provision. The patient is a community patient, not detained for treatment in hospital.

Application:
The patient was lawfully on the ward as an informal patient. No detention had commenced.

Conclusion:
Lawful.

Issue 2

Decision is made during ward round to recall the CTO.

Law:
Section 17E(1) and (2) give the Responsible Clinician (RC) the power to recall. Section 17E(5) provides that the power is “exercisable by notice in writing to the patient”.

Application:
The ward round decision was a clinical view, not a legal act. It did not recall the patient.

Conclusion:
No legal effect of a ward round decision.

Issue 3

CTO3 is completed at 10:00 but is not served on the patient at that time.

Law:
Regulation 6(3)(a) The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 requires the recall notice to be in Form CTO3. Regulation 6(5) requires the CTO3 to be served by hand delivery or post. Regulation 6(6) specifies when service is deemed to occur. Completion of the form is not service.

Application:
At 10:00, the CTO3 was completed but not served. The power of recall had not been exercised.

Conclusion:
Recall not effective at 10:00.

Issue 4

CTO4 is completed by nursing staff at 11:30 the same day (this timing is intentional rather than a clerical error).

Law:
Regulation 6(3)(d) MHR2008 provides: “the managers of the hospital to which the patient is recalled shall record the time and date of the patient’s detention pursuant to that notice in the form set out in Form CTO4.”

Explanation – The Jurisdictional Function of the CTO4:

The CTO4 is not an administrative afterthought or mere formality. It records the start of the 72-hour recall detention period created by section 17F(8). Section 17F(8) defines “the period of 72 hours” as beginning with “the time when the patient’s detention in hospital by virtue of the notice under section 17E above begins”.

That time – the start of detention – must be recorded on a CTO4. There is no other lawful way to fix that moment. The words “pursuant to that notice” require that the notice (CTO3) must have been served before the CTO4 is completed. The sequence is:

  1. Serve CTO3
  2. Detention begins (by virtue of the notice)
  3. Managers record that start time on CTO4

The CTO4 is void ab initio if completed before the CTO3 is served. It is not “recording a detention pursuant to that notice” – it is recording nothing, or recording a fiction. This is not a minor paperwork error; it is a jurisdictional defect because the 72-hour clock (which is measured from the CTO4 time) cannot be lawfully established.

Application:
At 11:30, the CTO3 had not been served (service occurred at 14:00). The CTO4 was therefore completed at a time when there was no notice to which it could be “pursuant”. The CTO4 is void ab initio.

Conclusion:
The CTO4 is void. The mandatory duty under Regulation 6(3)(d) MHR2008 has not been complied with. There is no lawful record of the start of the 72-hour recall detention period.

The CTO4 is a record of detention following recall. Its legal function is to document that a patient has been detained after a lawful recall has taken place.

Issue 5

CTO3 is then served on the patient at 14:00 that afternoon.

Law:
Regulation 6(5)(a) and 6(6)(a) – service by hand delivery is effective immediately on delivery. Section 17E(5) – the power of recall is now exercised. Section 17E(6) – the notice is authority for the managers to detain.

Explanation:
At 14:00, the recall is lawfully exercised. The patient is now subject to the recall provisions. However, the recall detention period under section 17F(8) has not yet lawfully commenced because there is no valid CTO4 recording its start.

The void CTO4 completed at 11:30 cannot be cured by the later service of the CTO3. The facts do not state that any fresh CTO4 was completed after 14:00. Therefore, the managers have not complied with Regulation 6(3)(d) MHR2008.

Application:
The recall is lawfully exercised at 14:00. But the 72-hour recall detention period never lawfully began because its start time was never recorded on a valid CTO4.

Conclusion:
The patient is not lawfully detained during any part of the recall period. The recall detention period under section 17F(8) never commenced.

Issue 6

CTO5 is completed the following day, approximately 20 hours after service of the CTO3.

Law:
Section 17F(4) – the RC may revoke the CTO if the section 3 criteria are met and an AMHP agrees in writing. Section 17F(8) – any revocation must occur within 72 hours beginning with the time when the patient’s detention began (under the CTO)

MHA 1983 Section 17G(4) and MHR2008 S6(8) – upon valid revocation, the original section 3 is re-enacted.

4

The hospital managers’ failure to comply with regulation 6(3)(d) of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008, which requires them to record on Form CTO4 the time and date of the recall detention, doesn’t mean that the “the 72-hour recall detention period never lawfully began”. That period began when the CTO3 (recall notice) was served: see s17E(5) and s17F(8). The CTO5 (revocation) was completed within that period.

Essentially I just agree with what Richard has already said.

5

@Richard_Rook
cc @anonymous53

I am grateful if you can revise your opinion to what logic dictates.

This is important because people are likely to believe you based on the referent power of your current or former status nationally. If they do so they will be acting outside of the law.

The CTO3 was validly served at 14:00 and gave authority to detain. However, the CTO4 completed at 11:30 was invalid because it purported to record detention pursuant to a CTO3 that had not yet been served.

If no fresh CTO4 was completed after 14:00, there was no valid prescribed statutory record of the start of recall detention. Without that valid start record, the 72-hour recall period was not legally constituted. Without a legally constituted 72-hour period, CTO5 had no valid temporal framework within or on which to operate.

CTO4 is not merely evidentiary. It is the prescribed statutory record of the start of the 72-hour recall detention period. Without a valid CTO4, the detaining authority has no lawful statutory record fixing the point from which the 72-hour period runs. In the captioned scenario the period is therefore not legally constituted for the purposes of section 17F revocation. CTO5 then has no valid statutory period within which to operate.

The authority cannot (reasonably) say: “We know the period began, even though we have no valid CTO4.” The law does not accept private knowledge. It requires lawful proof. The prescribed method of proof is the CTO4. If the CTO4 is void - as is unarguable, there is no proof. Without proof, the period does not exist in law though it may exist in ‘human heads’. Without the legally defined period being evidenced, the revocation is invalid.

I am only allowed three responses in MHLO forums. This is not self-imposed.

So if you or anyone else responds I will be at an imposed disadvantage to discuss the matter through several responses.

6

I wasn’t aware of that limitation. The forum software has hundreds of settings. I’ve changed it to 10.

7

I’m flattered, but it’s just my opinion. It has no status.

That said, it hasn’t changed.

You’re right, of course, that the hospital has failed to comply with the regulations by incorrectly completing the CTO4 (and perhaps not correcting it later - as you say, we don’t know that).

But the question is whether a court would see that failure as invalidating the recall and therefore the revocation. I think that is highly unlikely.

There is nothing in the Act to suggest the validity of a recall is dependent on the making of a record of when the patient is detained pursuant to it.

The Act is clear that the recall is effective when the notice is given to the patient, whereas the 72 hour detention period runs from when the patient is detained as a result of it. In other words, the recall can be in force and have legal effects before the 72 period even starts. It seems most unlikely that a valid recall would subsequently be invalidated by a failure to complete the CTO4 properly (or at all) recording the start of the detention.

Moreover, there is nothing in the Act that says there has to be a statutory record like the CTO4 at all. That was a choice made by the government in introducing the regulations. It could have decided not to have such a form. There are other time limits in the Act which run from a time or date for which no statutory record has to be made - eg the six month limit in s18 for retaking AWOL patients.

A missing or incorrect CTO4 might create evidential difficulties in the case of a challenge to a recall or revocation, but it doesn’t change the facts. And courts resolve factual disputes like that all the time.

8

anonymous53 - out of interest, how do you know that the CTO3 recall notice was served at 14:00?

9

@Richard_Rook cc @anonymous53
I read your response with interest. I apologise in advance for not providing a 30-second read on such a complex area of Mental Health Law.

The opening observation that the hospital failed to comply with the regulations is accepted. The effect of that non-compliance is what the OP was concerned with i.e. “Does completion of a CTO4 prior to formal service of the CTO3 render the revocation invalid?” I was inclined to say ‘no’. But following my OCB-type analysis - which most people don’t like, I concluded ‘yes’.

The next issue was is whether a court would see that failure as invalidating the recall and therefore the revocation. But this formulation conflates two different things. The failure to comply with Regulation 6(3)(d) [CTO4] does not invalidate the recall. The recall was valid at 14:00. The issue is whether the failure invalidates the revocation. That is a separate issue, and it is not answered by addressing the recall.

The next point states that there is nothing in the Act to suggest the validity of a recall is dependent on making a record of when the patient is detained. That is correct. But again, it addresses the wrong issue. The issue is not the validity of the recall. The issue is the validity of the revocation. The revocation depends on the 2-hour period being identifiable in law. The period is defined by section 17F(8). Regulation 6(3)(d) imposes a mandatory duty to record the start of that period in CTO4. The absence of a valid CTO4 does not affect the recall. It affects the ability to prove the 72-hour period. When the CTO4 is valid, the CTO5 has a temporal container on which to act.

The statement that recall is effective when the notice is given to the patient is correct. The statement that the 72-hour detention period runs from when the patient is detained as a result of recall is incomplete and potentially misleading. It omits the mandatory statutory mechanism for recording the start of that period.

When the CTO3 is served at 14:00, two things happen. First, the recall is effective. Second, authority to detain arises under section 17E(6). The patient may be factually detained from that moment – physically present and not free to leave.

However, the 72-hour period for revocation does not commence at that moment. Section 17F(8) defines the period as beginning with “the time when the patient’s detention in hospital by virtue of the notice … begins”. Regulation 6(3)(d) requires managers to record that time in Form CTO4. The Bevan Brittan guidance states plainly: “The clock is triggered by the patient’s arrival at and detention in hospital as recorded on form CTO4” .

The words “as recorded on form CTO4” are critical. The clock does not trigger automatically upon factual detention. It triggers when the detention is recorded on a valid CTO4. The CTO4 is not a formality. It is the prescribed statutory instrument that fixes the start of the 72-hour period for revocation purposes.

In the captioned scenario of the OP, the recall is valid. The patient is factually detained. But the CTO4 is void. The 72-hour period has no lawful start time. The revocation cannot be proved to be within the statutory window. The CTO5 is therefore invalid. The CTO remains in force.

The next point observes that the recall is effective when the notice is given to the patient, and the 72-hour period runs from when the patient is detained as a result. That is accurate as per 17E(6). The observation that the recall can be in force and have legal effects before the 72-hour period even starts is also accurate. Revocation is a separate legal act that depends on the 'legal existence of the 72-h period. If the period cannot be proved, the revocation cannot be proved to be within it and it cannot happen outside of it.

The statement that “there is nothing in the Act that says there has to be a statutory record like the CTO4 at all” is correct as a matter of fact about the MHA 1983. But the CTO4 is not created by the Act. It is created by Regulation 6(3)(d) of the Mental Health 2008 Regulations, which states, “the managers of the hospital to which the patient is recalled shall record the time and date of the patient’s detention pursuant to that notice in the form set out in Form CTO4.”

It is then stated, “It [the government] could have decided not to have such a form. There are other time limits in the Act which run from a time or date for which no statutory record has to be made - eg the six month limit in s18 for retaking AWOL patients.” I only know one reality that seems undeniable; that the ‘government’ has decided to have the form as prescribed for use in S6(3)d.

The final point suggests that a missing or incorrect CTO4 might create evidential difficulties but does not change the facts, and that courts resolve factual disputes all the time. This misses the nature of the difficulty. The difficulty is not a factual dispute about what time detention began. The difficulty is that the statute prescribes one lawful method of recording the time at which it started [S6(3)d]. Without a valid CTO4, the detaining authority cannot point to any lawful record. The prescribed form is the method. The authority failed to use it lawfully.

I am unaware that courts resolve factual matters by ignoring a mandatory duty (not that anyone said so). They more likely would enforce the duty. On the reported facts, the duty was not complied with.

I don’t think that people need to go to ‘court’ to solve these matters about what is the correct thing to do. Completing a CTO4 before service of a CTO3 is legally improper if one believes that S6(3) is meant to be followed. That’s basic common sense I hope, though ‘somebody’ may have thought they were being super-helpful by ‘working ahead’ for efficiency brownie points. The effect of creating a void CT04 is to undermine the CTO5 revocation, quite conspicuously. For reasons given above in this and other posts, the revocation lacks a lawful foundation and is therefore void.

In the captioned scenario the OP presented, the patient may be lawfully detained in fact. But the legal mechanism to convert that detention into a section 3 detention (via revocation and s.17G) requires a valid CTO4. The CTO4 is void without doubt. The CTO cannot be revoked consequent to a void CTO4. The section 3 cannot be revived. The patient remains a community patient subject to the CTO.

If the 72 hour period expires S17(F)6 applies:

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."

Consequently to the above, if the authority treats the patient as detained under section 3 (e.g., by applying Part 4 treatment rules, or otherwise acting as if the patient is a detained patient under section 3), that detention is without legal foundation. [Caution: ‘If’ is a conditional - not used in an imperative sense against ‘some Trust’.]

But no one should be worried about this. CNST has a £59 billion piggy bank backed by HM Treasury, waiting to pay out. But in any case, Human Rights violations are cheap to compensate. And most people don’t even know more than one Human Right from my long experience of working in all the wrong places.

10

The issue is not the validity of the recall. The issue is the validity of the revocation

I accept that, so perhaps the fact that the recall is in force before the 72 hour period starts is a red-herring.

But I don’t think the distinction between recall and revocation affects the fundamental question about the effect of failing properly to complete the CTO4. Not least because, if your argument were right, detention under the recall would be as unlawful as the revocation, because in neither case would you be able to say definitively whether the 72 hour period was still running.

On that fundamental question, I think your argument is based on a misconception.

We agree that the plain words of the Act are that the 72 hour period begins when the patient is detained in pursuance of the recall notice. And that a revocation is valid if correctly completed with those 72 hours.

But you go on to say:

The Bevan Brittan guidance states plainly: “The clock is triggered by the patient’s arrival at and detention in hospital as recorded on form CTO4” The words “as recorded on form CTO4” are critical.

But those words aren’t in the Act. They’re aren’t even in the regulations. All the regulations say is that the time of detention is to be recorded on the relevant form.

Even if they were in the regulations, being secondary legislation, they could not override the plain words of the Act which is primary legislation (because regulations can only do that when specifically empowered to do so, which these aren’t).

So the question is whether a court would treat a failure to comply with the regulations as rendering unlawful something which on the plain words of the primary legislation is lawful.

I don’t suppose that can be totally ruled out. But I still think it’s very unlikely.

I am unaware that courts resolve factual matters by ignoring a mandatory duty (not that anyone said so). They more likely would enforce the duty. On the reported facts, the duty was not complied with.

Actually, there is an extensive body of case law across all kinds of topics about whether a failure to take required procedural steps invalidates the whole of the process in question. I’m no expert, but in very broad terms, I think it’s fair to say that courts today tend not to see procedural lapses (even when contained in primary legislation) as fatal, unless the procedural step is a critical part of the overall process. They ask themselves a question along the lines of whether Parliament could have intended the failure to invalidate the overall outcome. (I believe this gets called the “Soneji principle” after a 2005 House of Lords decision in a criminal case).

In the present case, I think a court would be very unlikely to view the correct completion of a CTO4 as such a critical step.

11

I think you are misinterpreting this part of Bevan Brittan’s article. The statute explicitly states that the clock starts when the patient is detained by virtue of the recall notice (s17F(8)). The article doesn’t contradict that.

12

I accept that my earlier wording was too compressed. Section 17F(8) does not say that the 72-hour period begins when the detention is recorded on CTO4. It says that the period begins with the time when the patient’s detention in hospital by virtue of the section 17E notice begins.

My point has developed and is now more precise. The MHA identifies the relevant event. The Mental Health Regulations 2008 prescribe the formal record of that event. Regulation 6(3)(d) requires the managers to record the time and date of the patient’s detention pursuant to the notice in Form CTO4.

So I am not saying that CTO4 creates the detention, nor that CTO4 itself is the wording used in section 17F(8). I am saying that, for revocation purposes, the start of the 72-hour period must be capable of lawful identification through the prescribed regulatory record.

In the reported scenario, the only CTO4 was completed before the CTO3 was served. It could not validly record detention pursuant to a notice that had not yet taken legal effect. If no fresh CTO4 was completed after service, there is no valid prescribed record of the start of recall detention.

That is the problem. Not the validity of the recall itself, but the validity of the revocation. CTO5 requires a valid 72-hour temporal framework within which to operate. If the only CTO4 is void, that framework is not lawfully fixed. Therefore, the revocation remains invalid.

13

@Richard_Rook cc @Jonathan

I studied all of your post carefully.

As I understand it, the broad summary of differences of perspective is as follows:

  1. Richard: CTO3 served → authority to detain → CTO5 within 72 factual hours → valid revocation.
  2. My analysis: CTO3 served → authority to detain → detention begins by virtue of CTO3 → Regulation 6(3)(d) requires that time/date to be recorded in CTO4 → valid 72-hour framework exists → CTO5 can operate within it.

The central issue in the reported facts of the captioned scenario is “Does completion of a CTO4 prior to formal service of the CTO3 render the revocation invalid?” I want to keep that always in front of me.

Matters that may obscure the central issue

I think several points may risk unintentionally obscuring the central issue rather than resolving it.

  1. “The words ‘as recorded on form CTO4’ aren’t in the Act” – They do not need to be. The Bevan Brittan guidance [BBG] paraphrases Regulation 6(3)(d), which requires recording. The 72-hour period under section 17F(8) begins when detention in hospital by virtue of the section 17E notice begins. Regulation 6(3)(d) MHR 2008 requires that time and date to be recorded in Form CTO4. Therefore, for revocation purposes, the clock must be capable of being identified through a valid CTO4. If the only CTO4 predates service of CTO3, it cannot validly record detention pursuant to that notice. In that situation, the statutory clock is not lawfully fixed. The BBG is not the law; the regulation is.
  2. “Secondary legislation … could not override the plain words of the Act” – Irrelevant. No override occurs. The MH Regulations 2008 supplement the Act by prescribing the method of recording. There is no observable conflict between the primary and secondary legislation..
  3. “The question is whether a court would treat a failure to comply with the regulations as rendering unlawful something which on the plain words of the primary legislation is lawful” – The question is what legal consequence follows from breach of this particular statutory requirement. This is not a peripheral defect. It concerns the prescribed record of the start of a 72-h coercive period affecting liberty. On the stated facts, the statutory requirement has not been met because there is no valid CTO4.
  4. “There is an extensive body of case law … about whether a failure to take required procedural steps invalidates the whole process … the ‘Soneji principle’” – Properly applied, the principle requires attention to the purpose of the requirement and the consequence of non-compliance. Here, the requirement is mandatory, the step is critical, and the prejudice is obvious: the statutory start point for a 72-hour coercive period is absent.
  5. “I think a court would be very unlikely to view the correct completion of a CTO4 as such a critical step” – Before asking whether a court would treat the defect as fatal, the legal function of CTO4 must be identified. Regulation 6(3)(d) uses “shall”. CTO4 is the prescribed regulatory record of the time and date when detention pursuant to the CTO3 begins. That time is critical because CTO5 can only operate within the 72-hour framework. A CTO4 completed before service of CTO3 cannot perform that function. Without a valid CTO4, the start time cannot be proved through the prescribed legal mechanism for the purposes of revocation via CTO5.
  6. “If your argument were right, detention under the recall would be as unlawful as the revocation, because in neither case would you be able to say definitively whether the 72 hour period was still running” – Incorrect. Detention under recall is authorised by section 17E(6): “A notice under this section recalling a patient to hospital shall be sufficient authority for the managers of that hospital to detain the patient there in accordance with the provisions of this Act.” Recall detention therefore does not depend on CTO5. Revocation is different. CTO5 can only operate if there is a valid 72-hour recall period within which it is completed. The two stages are separate. The defect affects revocation, not the initial authority to detain under recall.
  7. “I don’t think the distinction between recall and revocation affects the fundamental question” – The distinction is the fundamental question. Recall and revocation are governed by different provisions. Conflating them obscures the analysis.

The Core Issue

Once the above matters are distinguished, the sequence is simple.

  • The CTO4 was completed before the CTO3 was served.
  • It is therefore void ab initio. A CTO4 cannot validly take effect by reference to a future CTO3 service. It was not merely early; it purported to record a statutory event that had not yet become legally possible.
  • Without a valid CTO4, there is no valid prescribed statutory record of the start of the 72-hour period.
  • The CTO5 requires that period to operate. The period has no lawful start time. The revocation has no valid temporal container within which to operate.
  • Section 17G(4) cannot assist because it is downstream of valid revocation. If CTO5 is invalid for want of a lawfully constituted 72-hour period, section 17G is never engaged and subsection (4) has nothing on which to operate.

A void CTO4 pulls the carpet from under the CTO5. There is nothing left to stand on.

Overarching question

Can CTO5 validly operate where there is no valid CTO4 recording the start of recall detention, whether because CTO4 was void or because CTO4 was never completed?

Case-specific questions

  1. Do you accept that the CTO4 completed at 11:30 could not validly record detention “pursuant to” a CTO3 that was not served until 14:00?

  2. If not, what exactly was the CTO4 recording at 11:30?

  3. Do you accept that service of CTO3 gives authority to detain, but is not necessarily the same thing as the time when detention in hospital by virtue of that notice begins for section 17F(8) purposes?

  4. In your view, does the 72-hour period begin at the moment CTO3 is served, or at the moment detention by virtue of the CTO3 begins?

    If you say those are the same moment, why does section 17F(8) refer to “the time when the patient’s detention in hospital … begins” rather than “the time when the notice is served”?

  5. If you say the 72-hour period begins at service of CTO3, how do you reconcile that with section 17F(8), which refers to the time when detention in hospital by virtue of the notice begins?

  6. What, in your analysis, is the statutory purpose of Regulation 6(3)(d) MHR 2008 requiring managers to record the time and date of detention in Form CTO4?

  7. If the CTO4 is defective or void, what statutory record fixes the start of the 72-hour period?

  8. Are you saying that the start of the 72-hour period can be proved by ordinary factual evidence outside CTO4, despite Regulation 6(3)(d) prescribing CTO4 as the record?

  9. If so, what is the legal source for that alternative method of proof?

  10. Do you accept that recall and revocation are separate legal stages: recall under section 17E, and revocation under section 17F?

  11. Do you accept that section 17G only applies if there has first been a valid revocation under section 17F?

  12. If no valid CTO4 exists after service of CTO3, how does CTO5 identify the lawful 72-hour period within which it is said to operate?

This post was constructed in Markdown code (a cutdown of HTML) with a combination of Typora, Writage plugin in MS Word (0365), macros in MS Word and Autohotkey for automated formatting. For assurance only, none of the latter inserts any malicious code. All code is viewable by the site owner.

14

Regulation 6(3)(d) MHR 2008 requires that time and date to be recorded in Form CTO4. Therefore, for revocation purposes, the clock must be capable of being identified through a valid CTO4.

That is the non-sequitur at the heart of your argument.

The regulations require the time to be recorded because, all things being equal, that provides an easily accessed source of evidence for everyone involved about when the detention began. But it simply does not follow that a failure to do so renders it impossible - either as a matter or fact or law - to determine when the detention started.

15

@Richard_Rook cc @Jonathan

I demonstrate consideration of your response.

I think the point about a possible non sequitur is useful because it identifies the hinge of our differing perspectives.

If Regulation 6(3)(d) merely created an ordinary evidential record, then I can see the force of your position. On that analysis, a defective or absent CTO4 would not necessarily prevent the start time from being reconstructed by other evidence. The revocation might then survive if the factual chronology showed that CTO5 was completed within 72 hours.

But that is not how I read the statutory and regulatory requirements.

The MHA 1983 (Amended 2007) identifies the relevant event. Section 17F(8) defines the 72-hour period by reference to the time when the patient’s detention in hospital by virtue of the section 17E notice begins. The MHR (H,G&T) 2008 then prescribes the legal record of that event. Regulation 6(3)(d) requires the managers to record the time and date of the patient’s detention pursuant to the notice in Form CTO4.

For S17F(8), the phrase “by virtue of the section 17E notice” is doing a particular job. It identifies the legal authority under which detention occurs. It does not, by itself, answer the separate practical/legal question: when did detention actually begin, and how is that start time formally recorded for the 72-hour framework?

That is why the sequence matters:

section 17E(5) — recall is exercised by notice;
section 17E(6) — the notice gives authority to detain;
section 17F(8) — the 72-hour period begins when detention in hospital by virtue of that notice begins;
Regulation 6(3)(d) — the time and date of that detention must be recorded in CTO4.

If someone reads section 17F(8) in isolation, they may think it solves everything. It does not. It defines the relevant event, but Regulation 6(3)(d) tells the system how that event must be formally recorded. That is the interpretive step that is easily missed.

So the missing bridge as per non-sequitur, is not missing. The bridge is the legal function of CTO4. CTO4 is not merely one convenient source of evidence among others. It is the prescribed legal record of the time and date from which the 72-hour recall framework is monitored and within which CTO5 must operate.

The Mental Health Act Reference Guide puts the sequence clearly. Paragraph 26.40 states that the recall notice gives managers power to detain for up to 72 hours from the time at which the patient is first detained as a result of the recall. It also states that the 72-hour period does not run from the time the recall notice was issued, unless the patient was already in hospital and was immediately detained as a result. Paragraph 26.41 then states that the start of the patient’s detention must be recorded by the managers using Form CTO4.

That supports the distinction I have been drawing. CTO3 gives the power to detain. The 72-hour period runs from first detention as a result of recall. The start of that detention must be recorded on CTO4. In the reported facts, the only CTO4 was completed before the CTO3 was served. It therefore could not record detention as a result of that recall.

The Explanatory Memorandum to the 2008 Regulations is also relevant. It states that the Mental Health Act 1983 establishes the legal framework, while more detailed procedural matters are left to regulations. It then explains that, although the Regulations largely concern procedural detail, they are important in ensuring that proper processes are followed and that decisions with implications for liberty are properly taken and recorded.

That matters here. Regulation 6(3)(d) is procedural, but it is not a dispensable paper exercise. It is procedure serving liberty, accountability and lawful recording. If a void or absent CTO4 can be replaced by ordinary factual reconstruction, then Regulation 6(3)(d) is mandatory in form but optional for the validity of revocation. That is where I find your analysis difficult to follow.

The Mental Health Act Code of Practice also supports the same point. Paragraph 29.69 states:

“It is the responsibility of the hospital managers … to ensure that no patient is detained following recall for longer than 72 hours unless the CTO is revoked. The relevant statutory form must be completed on the patient’s arrival at hospital. Hospital managers should ensure arrangements are in place to monitor the patient’s length of stay following the time of detention after recall, as recorded on the form, so that the maximum period of detention is not exceeded.”

That passage links the form directly to the hospital managers’ duty to ensure that the patient is not detained beyond the 72-hour maximum. It also states that the patient’s length of stay is to be monitored from the time of detention after recall “as recorded on the form”. That sits uneasily with the view that CTO4 is merely optional evidence that can be bypassed if the chronology can be reconstructed from other sources.

I accept that, in an ordinary factual sense, one may be able to reconstruct when detention probably began. The point I am addressing is whether ordinary factual reconstruction can replace the prescribed CTO4 record for the purpose of validating CTO5.

In the reported facts of the OP’s scenario, the CTO4 was completed before the CTO3 was served. It could not validly record detention pursuant to that notice. If no fresh CTO4 was completed after service, there is no valid Form CTO4 recording the start of detention after recall. In those circumstances, CTO5 has no properly fixed 72-hour framework within which to operate.

That is why I do not see the point as a non sequitur. The conclusion follows from the combined structure of section 17F(8), Regulation 6(3)(d), the Reference Guide, the Explanatory Memorandum, and the Code of Practice. The alternative view still appears to require a further step: a legal source for treating ordinary factual reconstruction as a substitute for the prescribed CTO4 record.

That is the step I still cannot identify.

This post was constructed in Markdown code (a cutdown of HTML) with a combination of Typora, Writage plugin in MS Word (0365), macros in MS Word and AutoHotkey for automated formatting, and Espanso for output of standard text strings. For assurance only, none of the latter inserts any malicious code. All code is viewable by the site owner.

16

In a sense, there is no right answer. The law is, ultimately, what the courts decide it is. And (as far as I know) no court has been - or is ever terribly likely to be - asked to address this question.

All I can say is that from my understanding of the way courts approach things like this, I think they would be unlikely to reach the same conclusion as you.

As you have done, they would approach it as a question of statutory interpretation.

They would first ask themselves whether there is anything in the plain words of the Act which says that revocation is unlawful in the absence of a properly completed CTO4. To which the answer is evidently no.

They might then go on to ask whether a failure to comply with the duty in the regulations to complete the CTO4 nonetheless renders the revocation unlawful. But they would most probably answer no to that too, because the real world problems caused by the lack of the CTO4 are minimal, as is any potential prejudice to the patient. Given which, they would most likely conclude that Parliament could not have intended a default in respect of the CTO4 to have such serious consequences.

They might, perhaps, chide the hospital for failing to comply with the regulations. But that would be as far as they went.

17

@Richard_Rook cc @Jonathan

This post focuses purely on what I now think may be the source of divergence: the meaning and effect of section 17F(8)(a). My concern is that section 17F(8)(a) is treated as largely self-sufficient once CTO3 has been served. CTO4 is reduced to a later non-essential evidential record, which if void or absent is not fatal to revocation.

I do not think that is right. Section 17F(8)(a) identifies the relevant start event: detention in hospital by virtue of the notice served under section 17E(5). It does not treat service of CTO3, authority to detain, actual detention in hospital, and recording the start of detention as one legal event.

However, for most of this post the overlay is the opposite of what I think is right.

Points first

  1. This post focuses on the position where section 17F(8)(a) is treated as self-sufficient once CTO3 has been served.
  2. I explore what follows if service of CTO3 is treated as golden.
  3. Can a patient be AWOL if recall detention has supposedly started while the patient remains in the community?

What about certain words

The phrase “by virtue of the notice” in section 17F(8)(a) is not decorative legal language. If Parliament had intended the 72-hour period to begin on service of CTO3, section 17F(8)(a) could have said so directly.

Instead, section 17F(8)(a) refers to the time when the patient’s detention in hospital is by virtue of the notice served under section 17E(5) begins. That requires two things: detention in hospital, and detention deriving legal authority from the notice. The notice is the source of authority. It is not itself detention.

Postal service problem

The difficulty becomes clearer if CTO3 is served by post on a patient at home and it is taken that the statute explicitly states that the clock starts when the patient is detained by virtue of the recall notice (s17F(8)).

Regulation 6(5) allows service by first class post. Regulation 6(6) deals with deemed service. That may work for deciding when CTO3 is treated as served under section 17E(5). It becomes difficult if deemed service is then treated as sufficient to anchor the section 17F(8)(a) 72-hour period.

Suppose CTO3 is placed in a post box at 12:05 on a Friday before a bank holiday (on Monday) weekend. The post box is not collected until 17:30. As the rule is the second business day following posting, Tuesday is the first business day, so Wednesday is the second business day.

Even then, Regulation 6(6) may answer: “When is the notice treated as served?” It would not answer: “When was the patient actually detained in hospital under the authority created by the notice served under section 17E(5)?”

The notice may give authority to detain at hospital under section 17E(6). But the patient is not detained in hospital merely because the notice has been served or deemed served.

Personal service problem

The same difficulty arises if CTO3 is handed to the patient in person at home.

Suppose a CPN visits at 10:00 on a normal Monday, hands the patient CTO3, and says, “This is notice of your recall.” The patient tears up the envelope without reading it, throws it aside, and refuses to attend hospital. The CPN leaves safely and records the date, time and place of service.

On those facts, service may be clear. Section 17E(5) may be satisfied. Section 17E(6) may give authority to detain at hospital. But the patient remains at home. If section 17F(8)(a) is treated as starting recall detention on service, the patient would have to be treated as detained in hospital while still at home.

Personal service may prove when the notice was served. It does not prove when the patient was actually detained in hospital under the authority created by the notice served under section 17E(5).

Community detention problem

The postal and personal service examples point to the same difficulty; the patient is treated as being within a period of detention in hospital while still in the community.

In practical terms, the patient is recalled, outside hospital, and apparently within a running 72-hour detention period. That is difficult to reconcile with section 17F(8)(a), which refers to detention in hospital.

The more coherent reading is that service of CTO3 recalls the patient and gives authority to detain at hospital under section 17E(6). If the patient does not attend, a separate route is needed to take or return the patient to hospital. The 72-hour period begins only when the patient is actually detained in hospital under the authority created by the notice served under section 17E(5).

The section 18 route

On that reading, section 18 may then be pulled in because the patient appears immediately absent from a detention supposedly already running.

Section 18(2A) and section 18(7) may then need to be engaged.

The CTO4 problem

On the position that section 17F(8)(a) is self-sufficient once CTO3 has been served, CTO4 under Regulation 6(3)(d) is not essential. The period can be treated as already running, and CTO4 becomes a later record.

That creates a practical question. How is the 72-hour period worked out where service occurs while the patient remains in the community? In the postal example, deemed service may be Wednesday, but the precise time may be uncertain. In the personal service example, the time of service may be clear, but the patient remains at home. In both examples, CTO3 has been served, but there has not yet been detention in hospital.

If CTO4 is treated as replaceable evidence, the 72-hour period risks becoming a retrospective reconstruction exercise.

The integrated scheme

The reading I advance avoids that confusion.

Section 17E(5) makes recall effective by notice in writing. Section 17E(6) gives authority to detain at hospital. Section 17F(8)(a) defines the 72-hour period as beginning when the patient is detained in hospital under recall authority. Regulation 6(3)(d) requires that time and date to be recorded in CTO4. Section 18(2A) and section 18(7) remain available where the recalled patient has not yet attended or complied with the requirement to be at hospital.

On that reading, the Mental Health Act 1983 and the 2008 Regulations work together. The Act supplies the power and identifies the relevant event. The Regulations prescribe the legal record. CTO4 does not create detention; it records the legally relevant start time once hospital detention under recall has begun.

Conclusion

That is why I cannot treat service of CTO3, by itself, as sufficient to start the section 17F(8)(a) period.

If section 17F(8)(a) is read that way, a patient served at home, by post or by hand, may be treated as being within a period of detention in hospital while still in the community. That gives insufficient effect to the words “detention in hospital”.

My reading is more cautious and demonstrably closer to the combined wording of the Mental Health Act 1983 and the 2008 Regulations: section 17E(5) makes recall effective by notice; section 17E(6) gives authority to detain at hospital; section 17F(8)(a) defines the period as beginning when hospital detention under recall actually begins; and Regulation 6(3)(d) requires that time and date to be recorded in CTO4.