I’ve been thinking recently about Community Treatment Orders (CTOs) under the Mental Health Act 1983, mainly because of a few queries coming my way about these relatively rare orders being recalled or revoked. I say “relatively rare” in terms of police exposure to them because there are thousands of people around the country who are in receipt of community mental health care whilst on such orders and mental health services are dealing with such vulnerable people every day. I once observed a few years ago, however, that if you’re a sergeant working a response team, issues arising from a CTO may be a one or twice a career event.
A Community Treatment Order may be authorised as a section 3 MHA patient or s37 hospital order patient is discharged from hospital. (This would not be used for a s37/41 restricted hospital order patient as there is an entirely separate system for restricted patients called ‘conditional discharge’.) The CTO for s3 or s37 patients then means the person is in receipt of community care, but subject to certain caveats and conditions which could include residence, making yourself available for medical / nursing appointments, medication and / or drug and alcohol testing, as appropriate. If you want more detail on CTOs, read my substantive post on them – this post is only about recalls and that is not to be confused with revocations!
There is also a Quick Guide available for CTO recalls / revocations, if a summary version is needed for operational circumstances!
The most frequent encountered CTO issue for the police service is recall, in all fairness — this means concerns emerge for a CTO patient, in whatever way, and their responsible clinician (usually a psychiatrist) decides it would be best if they were briefly returned to hospital for assessment or intervention. This brief stay after recall can last up to 72hrs and at its conclusion, either the patient is returned home as a CTO patient or their CTO may be fully revoked and they become a section 3 or section 37 Mental Health Act patient again, remaining in hospital for ongoing inpatient care.
This bit is crucial and it’s where I believe things go awry, most often. In order for a responsible clinician to legally recall a patient from the CTO for the 72hr assessment / intervention, they must serve a written notice upon the person. They can do this in a number of ways and the method chosen plays a role in determining when the recall will take legal effect, as follows —
- Personal service – hand the written notice to the patient and it takes immediate effect:
- Hand delivery – posting the notice by hand through a person’s address (or last known address) means the notice takes effect the next working day.
- Royal Mail – using the postal network to the address (or LKA) means the notice take effect two working days after being posted.
NB: please note it’s working days — Mon-Fri but excluding public holidays. So if you pop the letter by hand through the letter box on Friday afternoon, it takes effect on Monday unless that Monday is a public holiday, then it won’t take effect until the Tuesday. Equal peril for Royal Mail: if you post it on Friday afternoon, it will take effect on Tuesday monring, unless there was a public holiday, when it would be Wednesday morning.
Exam question for you: what happens if it’s posted on a Thursday evening, the day before Good Friday?! … answer at the bottom of the post!
In my experience where the police have become involved or need to be, personal service is the method chosen for recall and by service of the notice taking effect, the person then becomes Absent Without Leave (AWOL) under the Mental Health Act 1983. This means, they may be detained under s18 MHA and taken to the hospital to which they’ve been recalled. Remember: s18 MHA can be exercised by any AMHP, member of staff in the relevant hospital, constable or anyone else authorised by the hospital’s managers. Also worth bearing in mind paragraph 28.14 of the Code of Practice (2015, England** or 2016, Wales** – the paragraph reference is the same in each country’s Code, quite helpfully!) and it outlines that where the location of an AWOL patient is known, the police should only be involved in returning them where necessary. For me, that must be a reference to circumstances or urgency or risk where the police bring unique capacities to the management of the situation. Routine returning of patients should not involve the police or should release them as soon as possible because we know policing and over-policing is not benign in its impact.
The legal notice is key: without it being served, any desire or intention by NHS staff to recall the patient is legally meaningless, however well intentioned or grounded in legitimate concerns. The person remains a CTO patient in the community until a notice is served and it takes effect – it therefore means, any police management of that person until such time as the notice is served, it remains governed by whatever legal framework was in place originally, if there was one. The notice must specify the hospital to which the person is recalled and therefore the psychiatric ‘bed’ debate looms large over this issue.
Where a responsible clinician wants to recall a CTO patient but does not know the hospital which will accommodate the person for 72hrs, they cannot serve a recall notice because it won’t be able to specify the location to which the patient must go or to which they can be taken. In that sense, it’s similar to the situation where an AMHP wants to “section” someone after a Mental Health Act assessment, but there’s no bed. AMHP’s cannot normally complete the MHA application unless they specify the hospital and with a CTO they cannot complete the recall notice unless they specify the hospital. So a crucial question to be asked of NHS staff who are referring to recalls should be, “Have you served the recall notice on the patient and how did you serve it?” I hope you don’t receive the reply I once had: “What’s a recall notice?!”
Of course, where a CTO patient has not yet been recalled for ‘bed’ related reasons but they are at imminent risk of immediate harm, they could be detained under s136 MHA and removed to a place of safety or safeguarded by other laws, where applicable. Their CTO status does not mean they must be initially and only be safeguarded through a CTO recall. If they had been under arrest in police custody, they can remain there as long as the ongoing detention is justified by the Police and Criminal Evidence Act for example. Where PACE grounds to detain cease, then you have a problem if the recall notice isn’t served and s136 opens up as non-ideal option in my view but bed managers and the NHS should be working to ensure this isn’t required (s140 MHA is of relevance to the need for urgent admissions).
ATTENTION TO DETAIL
It’s important that detailed understanding accompanies all of this to avoid situations where people are detained without clear legal grounds and to ensure that risk are managed effectively by the correct agencies who carry the legal of duty of care to the vulnerable person. Simply taking a doctor’s word for ongoing to detention because that doctor claims to have recalled someone isn’t enough, unfortunately – officers need to confirm the recall notice is served and how it was served. Unfortunately, some mental health professionals haven’t had training on these matters either but to avoid adverse incidents and outcomes which may be subsequently judged unlawful, it’s important to know the specifics are satisfied.
EXAM QUESTION: a CTO recall posted the day before Good Friday takes effect on the Wednesday after the Thursday when it was posted, because neither Good Friday nor any of the days over the long Easter weekend are working days. Tuesday is working day number 1 – so Wednesday is working day number 2.
** I’d be interested to know when the MHA Codes of Practice will be updated. They are six and seven years out of date already which wouldn’t be a problem if the law had remained the same, but there was significant amendment to police powers in 2017 and 5yrs later we see no update, despite new challenges emerging from those amendments.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk