The ultimate solution seems to be emerging that: ‘there are no RC-specific powers’ because the Act does not care who is the RC. I can make that inference from the statement below.
And when Parliament ‘does not care who is the RC’, this would mean, naturally, that when Parliament said ‘the approved clinician’, they were actually referring to any RC at any time previously or subsequently - and by extension a previous T2, S17(3) leave, S62(1) or S62(2) authorisation under a former RC, is legally valid until such time that a new RC re-validates them or changes them.
Frege-Russell analysis
Let R(t) = “x is the RC at time t”
Let A(x, P) = “x authorises P”
Let L(P) = “P is lawful”
P is whatever can be authorised (not a patient).
Then: L(P) ↔ ∃t: R(x,t) ∧ A(x,P) ∧ P ongoing only if ∃x: R(x,now) ∧ A(x,P) or P self-terminating
But no such clause exists to carry forward A(x,P) beyond R(x,t).
I present the above in the odd chance that someone wants to check it for accuracy. I estimate the probability of that as 1 in 10 million.
Whether anyone understands the above or not, the raw logic is pointing to something. Some may not like that ‘something’. I don’t like it either - just to be clear.
I am well aware that logic gives way to authority and crowd sentiment.
On T2s
I am cognisant that you are not representing CQC opinion in this discussion.
As text has a way of suffering conceptual drift, I need to clarify something. I have not suggested ‘a’ or ‘the’ practical solution. I have referred to the cultural pragmatics that operate.
I am trying to work something out.
My analysis is based on sticking to the wording in the law in the first instance. Interpreting ‘Parliaments will’ is normally for the courts. But as we know, ‘everybody’ is in on this even when they’re not a court. So that means they can do as they ‘feel’ is right or justifiable on grounds of pragmatics.
If there was a time when my grammatical and syntactical analysis became acknowledged as correct based on the raw rules of logic (the first phase), then it would seem sensible to move on to ‘pragmatics’ as a second phase. What I often see, though, is pragmatics intruding at the outset. I am well aware of the implications of stopping a patients’ medication when a new RC on ‘day one’ has been unable to do a T2. I should know so - and I do - after 30 years in the business of psychiatry.
A bit of history
About 7 years ago, in the presence of CQC bods at a unit in somewhere in the north - they showed me text from the version of the MHACOP (of that time). This was used to tell me exactly this [not a quotation from MHACOP of that time], ‘No medication can be given unless and incoming RC updates and validates the pre-existing T2’. I then argued, ‘So that means patients will go psychotic - because I as the RC don’t know the patient and cannot possibly validate the previous T2 on day one or day two?’ Their response was - burned deeply in my memory - ‘We don’t make the rules’. Of course, no medication was stopped. More than 6 weeks later I still could not complete certain T2s because there was absolutely no documented rationale for certain cocktails of medications. In other words, I was meant to concoct rationales for treatment, propose the concocted plan to patient(s), test their capacity and sign off as ‘consenting’. Seriously?
But the matter did not go away. I came under ‘heat’ to do the T2s anyway - which I refused. And then what? I get a black mark on my recommendation. Well-deserved, some will say. Caution: I’m aware that the relevant clauses applicable at that time were removed from that version of the MHACOP subsequently. But that doesn’t mean continuous heat is not applied in recent times to ‘get all T2s validated ASAP’ regardless of the junk and irrational prescribing I encounter. So - this means I must make rational what is irrational, propose, test capacity and sign off. How about ‘no’ - take me to the GMC instead.
Doctor
Yes - but not just ‘a doctor’. It is a doctor with powers ruled directly by Parliament via S34 MHA 1983.
No one so far as acknowledged explicitly that the wording is ‘the approved clinician’ (RC - when a doctor). It is long held as legal tradition that the word ‘the’ is about a specific ‘thing’, ‘content’ or ‘person’. The Interpretation Act 1978 deals with these issues by not focusing on the word ‘the’ but by focusing on focusing on the words ‘a’ and ‘an’. [Caution: I only refer to the IA to understand the culture of legal interpretation of words - nothing else. I’ll pull by own socks up.]
It is known that there can only be one ‘the approved clinician’ for the purposes with S58 (not deviating to variations of practice i.e. sticking close to the word of the law). Nothing in the MHA 1983 implies that ‘the approved clinican’ can be a previous ‘the approved clinican’. What’s happening across the land is that ‘everybody’ - recognising the absurdity of the words ‘the approved clinician’ - automatically makes the jump into pragmatics and in their minds to go something like ‘that can’t be the case.. we can just let patient suffer’.
Scope of my OP
But note my OP was not ‘only’ about T2s. Later on I said that pragmatics is what leads to S62(1) being used as S58(3)a. The evidence for that is overwhelming. My first FOIA batch from the CQC showed this situation well. My second batch is said to be coming soon, unless the CQC decide by some legal magic that they can’t provide it. Yadav R, Zigmond AS. Mental Health Act 1983: use of urgent treatment in clinical practice. The Psychiatrist. 2013;37(5):156-159. doi:10.1192/pb.bp.112.038414] stated, “Our study suggests that the urgent treatment provisions of the Mental Health Act 1983 are increasingly being used for a full treatment plan while awaiting SOAD examination. This is perhaps unlawful use of the urgent treatment provisions and is certainly outside the guidance of the Code of Practice.” I went further to say in other places (I’m not allowed to link to) that it wasn’t just ‘perhaps unlawful’; that it ‘is unlawful*’.
‘Relevance?’ - some may wonder. The relevance should be obvious but I probably need to spell it out: There are certain sections in the MHA 1983 that are ‘the RC’ specific. Section 58(3) - S62 bypass - is specific in referring to ‘the AC/RC’ in 58(3)a. The words are in ‘plain daylight’ for everyone to see.
Pragmatics
I totally appreciate that that’s sensible and pragmatic. However, I note that ‘people’ across the land think that it’s mere paperwork. It isn’t. How? Some may wish to (or not) understand GMC expectations on capacity/consent [which only for clarity is not specific to the MHA - but rules medical practice.] What if the ‘paperwork’ cannot be completed - because the previous RC was ‘on another planet’ and merely did a cut and paste from the previous T2? (not an uncommon situation from my long experience). I can walk - if invited - into any longer term in-patient mental health service in England & Wales, and find one example of similar within 2 hours (which will expose breaches of GMC standards on prescribing).
I’m now considering a FOIA to the CQC to discover how they determine, ‘a gap that seems longer than necessary.’
It’s all ‘needs led’.