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.