The only person who can recall a CTO patient is the Responsible Clinician (RC). That is, the Approved Clinician (AC) in charge of that CTO patient. This should be a matter of fact, the person having been appointed as such by the detaining authority.

The expectation is that this would be done by a protocol (Code of Practice 14.3). The recall must be in writing (handed directly to the patient, put through their letter box or posted, first class, to their last known address). Recall does not have to be to the same hospital, or group of hospitals, as manage the CTO.

Protocol

The protocol may, or may not, change the RC at any point i.e. whilst the patient is still in the community (perhaps because they move to the area of a different CMHT or out-of-hours) or on recall (the protocol may have different RCs depending on whether or not the patient is readmitted to hospital on recall) or revocation – that is a matter for the protocol. The Code makes clear that there must be cover arrangements for when the RC is not available. The protocol could, for example, make an AC from CRHT the RC out-of-hours.

The RC may consider recall and ask the CRHT for their assessment and opinion. A (different) protocol may recommend this. However, once a RC has recalled a patient, the patient is AWOL (immediately if the recall note is handed to the patient, at 00.01 the next day if put through the letter box and the next but one working day if posted) and must return to hospital.

Should anyone interfere with this, Section 128(3) MHA 1983 may come into play:

Where any person knowingly harbours a patient who is absent without leave or is otherwise at large and liable to be retaken under this Act or gives him any assistance with intent to prevent, hinder or interfere with his being taken into custody or returned to the hospital or other place where he ought to be he shall be guilty of an offence.The penalty is up to two years in prison and/or an unlimited fine.

CRHT

An interesting observation, has been made, about the similarity with detention under section 2 or 3 and the role of the CRHT. In practice this is indeed likely to be similar. However, a Trust could, however foolishly, have the CRHT make the decision as to whether or not to accept the patient on behalf of the hospital managers. In other words, the authority to interfere with a recall would appear to be less than with the original section.

Once recalled the patient should be assessed and, if appropriate and authorised, treated. This can be undertaken by the RC or by others on his/her behalf. Whether this is the same RC or another one, and, if another one, whether it is an AC from the ward, CRHT or somewhere else is for the protocol to determine. Only the RC, however, may release the patient within the 72 hour period (section 17F(5)). A Trust could, of course, have a policy which stated that on recall the RC is an AC from CRHT. This would be the only way to give CRHT the authority to send the patient back into the community. This is not to suggest that all sorts of things couldn't be done by discussion and collaboration, in relation to an individual patient, with the agreement of the RC.

Section 3

The RC may, with the agreement of an AMHP, revoke the CTO such that the patient is again detained (under their previous section unless the patient was transferred to a CTO directly from supervised discharge under the transitional arrangements). This may lead to yet another RC being allocated.

I note that there has been a suggestion that patients are being placed on section 3 specifically to be able to apply a CTO. It must be recognised that a patient shouldn’t be detained under a section 3 unless they require treatment, under detention, in hospital. Placing the patient on a CTO immediately thereafter may well be unlawful (see ‘Hallstrom’). A patient can not be said to have required treatment in hospital, a prerequisite for section 3, if they can promptly be sent into the community. How long one should have to wait will, no doubt, be determined by the courts.

This, at least, is my understanding. For a view as to the legality of a protocol or process an opinion should be sought from the detaining authority’s legal advisors or the doctor’s defence society.

Best wishes

Tony Zigmond