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.