I don’t think the case can be put any more clearly and succinctly than Richard already has, but as a practical illustration…
The identity of the RC at any point in time is a matter for the hospital managers. Unless you have ACs working every second of the year the RC tends to change at circa 5pm every day and then 9am the following day so that the powers of the RC can be exercised out of hours by the duty consultant. If Mr Lutchman’s interpretation is correct then hospitals would need new Section 17 and T2 forms twice a day for all relevant patients in order to lawfully provide s.58 treatment or make leave available for anyone…
You must be right that one RC’s decision cannot bind a future RC.
But, like others, I don’t think it follows that leave already granted somehow becomes void.
A patient only becomes AWOL in accordance with s18(1) . There is nothing in s18(1) to suggest that it is referring only to leave granted by the current RC. Indeed, s18(1)(b) refers expressly to the leave which “was granted” to patient. If the leave was granted to them by the person who was their RC at the time, then it remains the leave in play so far as section 18 is concerned. despite a change of RC. The new RC can countermand a leave that has been granted but not yet taken effect, and can recall a patient who os already pn leave, but the patient doesn’t become AWOL simply because there is a new RC.
Likewise, I think the power to keep a patient in custody pursuant to “escorted leave” granted under s17(3) must persist despite a change of RC. Any other reading would be peverse, and I can’t imagine a court adopting it. It would mean, for example, that if an RC died suddenly while the patient was on leave - and therefore, by definition could no longer be the person in charge of the patient’s case - escorts would immediately be unable to keep a patient in their custody.
In any case, I am not convinced that a change of RC means that leave arrangements would have to be restarted from scratch, The new RC is now legally responsible if leave goes wrong, but won’t be at any legal risk provided they behave in a professionally reasonable way. Wouldn’t a reasonable body of medical opinion permit one consultant psychiatrist to rely, at least transitionally, on the judgment of one of their peers, unless there are good reasons to think they should not ? So, even if it were true that lave granted by a former RC could no longer be relied upon, is there any reason why an incoming RC’s should not, as a matter of routine, indicate that they approve the continuation of leave arrangements as granted by their predecessor until such time as they decide otherwise ? They should then, of course, review those arrangements as soon as they can - but in normal circumstances I can’t see why it would be negligent or otherwise unlawful to allow existing arrangements to continue more or less automatically.
Been rereading this thread and dredging my memory to recall if I was the civil servant who added those words. Honestly can’t remember. But I hope not, because they don’t really make sense. If it were true that a T2 was invalidated by a change in the approved clinician in charge of a treatment, then logically that would be true of all such changes, not just “permanent” ones. So I agree with you and others that the Code here is questionable. I suspect it was an attempt to encapsulate CQC’s pragmatic position - not void, but not to go unreviewed for ever - which ended up becoming dogmatic by mistake.
I read all of your post. The Bolam defence is a standard for negligence, not a general defence for breach of statutory duty.[If engaged on that I can head down that ‘rabbit hole’ and then be restrained].
In granting leave - which does not suspend or nullify detention - ‘the RC’ is responsible for statutory duties of care. RC#1 takes on those duties if they don’t know about it, or are ‘not a lawyer’. Apparently - I’ll be led to understand - RC#2 takes the baton for those statutory duties on day one (on S17 leave, Consent to Treatment, and S62). Not everybody believes that.
On day one RC#2 taking over from RC#1 will know nothing of leave arrangements and the various balance of considerations under 27.10 MHACOP (which nobody cares about anyway).
On day one a new RC#2 has not individually granted leave to any patient because RC#1 would have done that. If one is a pure legal theorist, one would argue the issue of review leave within a reasonable time or as ‘soon as one can’. Who would decide that? A court most likely, after some ‘trouble’ like a suicide or homicide has happened. And how would the court come to what is ‘reasonable’?
RC#2 had 15 patients on day one 8 of whom were on S17 leave, has 5 T2s to review as well, has 10,000 pages of text to digest (easy estimate) and time to be spent speaking with staff, and preparing for 2 Managers’ Appeals or Tribunals, not to mention which is to mention the usual demands for time in CPAs, formulation meetings, wrestling to get onto an EPR (like RIO), botched IT systems over the first week (the usual).
The issue has taken a side road even after acknowledging that the authority of RC#1 to grant leave cannot bind the next RC [RC#2]
The main road is that RC#2 becomes responsible for something that s/he can have no knowledge of quite easily for the first week or two (and beyond).
I had much fun with one of the AI’s this evening. This is AI’s suggestion (not mine and not supported by me). I wonder if others would agree with it. I quote,
It is highly unrealistic to expect any RC to fully review 15 patients’ files and risk assessments instantly.
However, the legal framework is absolute: The law imposes an immediate statutory duty and grants an immediate power, regardless of administrative capacity. The MHA creates a scenario where risk mitigation outweighs convenience. Since RC #2 cannot conduct an “instant review” to satisfy their duty of care, the statutory power to terminate the risk instantly (S17(4)) becomes the necessary tool for self-protection.
Therefore, RC #2 must, as a function of legal defense, revoke all S17 leave for which they cannot instantly verify RC #1’s risk-benefit analysis through readily available handover documentation. This defensive action is the purposive interpretation that ensures the MHA’s liability framework remains functional when confronted with the “absurdity” of immediate risk transfer.
Caution: I am well aware that AI has no working actual knowledge of the real world or practical matters involved.
Caution again: I have not accepted ‘advice’ from an AI. I present it as the AI’s thoughts increase the tension in the discussion, I would expect. I like tension in the context of cognitive dissonance.