Introduction to CTO Recall: Part 1

Community Treatment Orders (CTOs) remain one of the more controversial elements of the Mental Health Act 1983 (as Amended by the 2007 Act, "MHA"). Clinical opinion is divided as to their effectiveness, but they persist in practice and remain a useful tool in implementing the guiding principles of empowerment and least restriction.  One of the complex aspects of CTOs is the recall process, some of the quirks of which are not entirely straightforward. This is often overlooked compared to the (also complex) issues around management in the community, revocation, and detention.  But a problem with recall could undermine the legality of subsequent detention and community restrictions, potentially for years to come.

This article (Part 1) set out an introduction to the relevant law and procedure of the recall process.  Part 2 of this article will follow, illuminating the more complex issues of recall including the unique features of the period of time the patient spends subject to recall but before any revocation, when they are both community patient and not at the same time.  The article will also analyse the potential locations to which a patient might be recalled, and highlighting some of the pitfalls we encounter.

What is a CTO?

CTOs exist under section 17A MHA, and have associated provisions peppered through the MHA and Code of Practice. The key statutory requirements are contained in sections 17A-17G.  The term "community patients" usually refers to those subject to CTOs, but can include voluntary community-based patients and conditionally discharged patients.  This article will focus on CTO patients only.

A CTO can be imposed at the point of discharge to a patient subject to section 3 or section 37.  The CTO should be developed as part of that patient's discharge planning process and contain conditions specific to their care needs. There are some compulsory conditions for all CTOs: that the patient makes themselves available for examination for renewal of the CTO and for examination by a second opinion doctor, if needed.  Other conditions can only be applied where necessary to ensure the patient receives treatment or to protect the patient or others.  A CTO effectively suspends the section 3 or section 37 authorisation for detention unless and until the patient is recalled to hospital and the CTO is subsequently revoked, at which point the previous section 3 or section 37 is re-imposed.  For the purposes of Tribunal eligibility and renewal, the new period of detention begins from the date of revocation.

Recall

Patients subject to CTOs can be recalled to hospital by the Responsible Clinician ("RC").  Before coming to this conclusion the RC should consider less restrictive options, for example informal admission (Code of Practice 29.49).  A recall notice is then served on the patient, who on arrival at the hospital they are recalled to, can be detained for up to 72 hours. By the end of this period the CTO must be revoked or the patient released.

A recall decision may be made on the basis that in the RC's opinion the patient "requires medical treatment in hospital for his mental disorder" and there is a risk to the patient or others if they are not recalled.  The RC does not have to have examined the patient prior to issuing such a notice, although it would be good practice to do so where practicable. The patient can also be recalled for failure to make themselves available as required by the compulsory, statutory conditions.  It is notable that breaching any of the other conditions is not sufficient reason for recall.  The conditions for revocation are the criteria for detention under section 3, and require the agreement of an AMHP.  The requirements for recall are thus less onerous, and it may be that once recalled it becomes clear that revocation is not required, or that treatment within the 72-hour period will be sufficient to prevent revocation from being necessary.

Recall Procedure

The CTO recall notice must take the form of form CTO3.  It should be given to the patient personally if possible, served on them at their last known address, or if necessary and in a non-urgent situation, it could be posted to them.  The notice will specify which hospital the patient is recalled to (which need not be the same unit that they were previously detained in) and the RC should ensure that the receiving hospital has provision for the patient before issuing the recall notice.

On the patient's arrival to the hospital they have been recalled to, a form CTO4 must be completed, logging the time of their detention.  This marks the beginning of the period of up to 72 hours during which their care must be planned and their legal status considered by their RC.  The form CTO5 is used if a decision to revoke the CTO is then taken.

It is worth flagging that the function of the RC in these sections of the MHA is not delegable to an Approved Clinician ("AC"), as some other powers are.  While an RC is on leave another may cover for them, becoming the patient's RC in a short-term sense, and the RC may transfer between a community and ward-based consultant on admission, but whoever is RC at any time must exercise their functions directly.  A transfer of RC role should be recorded in the patient's notes.

A recall notice informing a patient of their recall to hospital – particularly in the common context of deterioration in mental health – will not necessarily prompt the patient to self-present as requested at the hospital detailed in the recall notice.  If a patient cannot be persuaded to attend hospital, the community team should liaise with the inpatient team and consider seeking support of the police to achieve the patient's admission to hospital. A warrant can be applied for under section 135 to allow a police officer to enter premises in order to retake the patient and convey them to a place of safety.  The premises involved need not be the patient's own address, but an address within the relevant court's geographical jurisdiction where the patient is believed to be, and entry has or is expected to be refused.  This provision is also available to retake patients who decline to return from section 17 leave.

Informal Admission

Clinicians are often unaware that patients who are subject to a CTO can be admitted to hospital informally (section 131 and Code of Practice 29.49). They can then be made subject to recall if that becomes necessary, without any variation in the above procedure. They should still be issued a recall notice, even if they are physically at the hospital they are recalled to, and once this is served the 72 hours of recall detention begins.  Therefore voluntary admission should be considered as a standard element of the process before recall is deemed necessary, much as it is in MHA assessments for detention under section 2 or 3.

Complexities of CTO Recall

CTO recall requires co-ordination between community and ward-based services and the familiar but consistently tricky balance of protecting patients while protecting their rights. These introductory points should be understood by all staff dealing with CTO patients.  There are often very basic problems with CTO paperwork – especially at recall – which have invalidated ongoing detention and diminished patient-clinician trust, so all staff should be equipped to identify potential problems at the earliest stage.  Part 2 of this article will address more complex matters which should be considered by RCs and staff responsible for policy development to ensure lawful frameworks for psychiatric care.

For further information on this matter please contact Clementine Robersthaw, Solicitor or Stuart Marchant, Partner.