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.