The Mental Health Act 2007 introduced into English / Welsh law, the notion of supervised community treatment (SCT). Up until this Act, most mental health patients were either detained in hospital or they were subject to no legal restrictions or obligations at all. This new legislation allowed the discharge of patients into the community, subject to some conditions and with an ability to recall them to hospital, if it were adjudged that their rehabilitation in the community was not being effective.
So, s17 of the Mental Health Act 1983 (leave of absence) now contains a range of additional sections (sections 17A to 17G) which govern the operation of Community Treatment Orders and most importantly for the police, recall and revocation of CTOs.
It is not a perfect analogy, but officers may benefit from thinking of a CTO as being similar to the operation of police bail conditions: someone is released from police custody subject to certain conditions and if those conditions are breached, then the person can be taken back into custody. CTOs are very similar, but it is not just a breach of a condition that can lead to recall, but also a general sense that recall is necessary in the interests of that person’s health.
A person is recalled by the service of a notice, usually done by post or by hand to their last known address and it should include a place and time they should go to a specified hospital – not necessarily the hospital from which they were originally discharged. The Responsible Clinician may then detain them there for up to 72hrs to make further assessment of how the patient’s care will be handled. This may mean, full revocation of the CTO and the patient again becomes an inpatient under s3 MHA; or a further attempt at managing the patient on their CTO, potentially with altered conditions.
CTOs are used thousands of times per year. Indeed, concern was raised in 2010 about whether they were being over-used because they were being issued at ten-times the rate of initial estimates. The original intention was that CTOs would prevent a “revolving door” in mental health care, which assisted in breaking the cycle of a small number of patients going from admission to discharge; and then to crisis and re-admission. In practice, they are being used more often and not just for patients in a revolving door situation.
POWER TO RECALL / REVOKE
If the Responsible Clinician (the psychiatrist in charge of the patient’s care) is satisfied on various grounds that it is appropriate to recall the patient to hospital, then they must serve notice upon the patient. As mentioned, the time / place will be specified. If the patient does not show up at that time and place, they are regarded as AWOL under the Mental Health Act and may be retaken into detention by an AMHP, the staff of the specified hospital, a police officer or anyone else authorised by the managers of the specified hospital.
NB: officers should be cautious to ensure that there is a recall notice in place. I once got asked for advice on a case where a man had been arrested for an assault, without officers knowing that he was mentally ill at all. Once in custody, a family member contacted the police and informed us of this fact. The custody sergeant then rang the relevant mental health professionals to begin to gather information and to inform them of the patient’s arrest so that mental health assessment could be undertaken prior to any potential interview for assault. She was promptly informed that the patient was a SCT patient and they had been recalled from their CTO. It quite quickly emerged that there was no evidence to support a charge of assault, primarily because the victim to it would not give a statement to the police or offer any evidence at all. As such, the custody sergeant had a man in detention for assault which needed to end because the legal decision around prosecution had been reached – to take no further action. However, mental health services wanted the man detained because he had been recalled, until arrangements could be achieved for his admission to the relevant unit.
The custody sergeant did not know what a CTO was or what powers the police had but did have the presence of mind to ring to demand a copy of the recall notice or some other written indication that a legal decision of recall had been taken. There seemed to be problems in achieving this and mental health staff were getting frustrated with the sergeant demanding copies of things, whilst she was getting increasingly concerned about whether he ongoing detention of the man was legal because of their unwillingness or inability to provide the assurances she sought that she was acting legally.
It unfolded that the recall notice had never been issued. They wanted to recall him, but had not yet done so. As such, it was the case that the man was being held illegally by the sergeant. He was promptly released amidst much frustration on the part of mental health services and a certain amount of grumpiness on the part of the custody officer who felt somewhat professionally violated – reminders were thrown about regarding Article 5 ECHR and staff were asked to put in place safeguarding arrangements for him, should they have ongoing concerns. Obviously, they could ring again if the recall notice was properly issued and ignored.
Yet again, we got close to the point of the police being incited to falsely imprison someone without lawful authority, because of convenience or preference.
- If someone has been recalled to hospital, there is a power for the police to re-detain them if they fail to do so.
- However, if the re-detention is pre-planned – rather than something that emerged from an unrelated arrest, as above – then the same considerations should be given as for the recovery of any other AWOL patient.
- Mental health service should lead a detention if the whereabouts of the patient is known, with officers supporting only where this is consistent with RAVE risks.
- Where there is any need or request to hold someone in police custody at any stage, officers should check that a recall notice has been issued and seek a copy or other written confirmation – this is like the legal basis to act under s18 MHA by arresting or holding someone.