Introduction to CTO Recall: Part 2
My previous article "Introduction to CTO Recall: Part 1" covered the basic process and procedure of recall from a Community Treatment Order ("CTO") under s.17E Mental Health Act 1983 (as Amended by the 2007 Act, "MHA"). This article (Part 2) will cover some of the more complex issues which may arise in recall procedure and the 72-hour period following recall during which time the CTO may be revoked and the patient re-detained under their former section. This article will also include areas where the law or guidance is less clear and local policy should be developed to assist clinicians.
Communication with external services will be important for management of the recall process at every stage. A good working relationship between community and inpatient teams, as well as the involvement of appropriate third parties including GPs, family/friends and specialist services will help facilitate recall decisions and the practicalities of recall. This process could mirror the discharge planning process to optimise the patient's experience and seek the shortest admission which achieves therapeutic goals while adhering to the least restrictive principle. In practice, it is the community team who lead the decision to recall and the inpatient team who lead the decision on revocation, meaning that one process is divided and delivered separately by two teams, who should therefore seek to collaborate as appropriate.
One particular aspect of recall which requires good external communication is liaison with police services to obtain and affect a s.135 order. This allows the Court to issue an order authorising police to enter private property to remove a patient to a place of safety for detention or psychiatric care. This step would most reasonably follow the service of a recall notice if the patient fails to engage with their recall or it is considered unsafe for staff to take further action without police assistance. Police involvement is likely to escalate matters from the perspective of the patient, in particular as the attending officers will not necessarily act only in line with the wishes of staff, and the patient may be subject to restraint such as handcuffs. It may be appropriate prior to implementation of a s.135 order to attempt other methods to achieve compliance with the recall notice, such as contacting the patient's GP, other services who may have a relationship with the patient, or even family members.
As previously described, CTO recall is the authorisation of detention in hospital for a period of up to 72 hours for treatment and/or revocation of the CTO. Clinicians have three days, starting with the patient's admission, during which to assess the patient, seek to stabilise their mental health without further inpatient care, and if necessary revoke the CTO to authorise ongoing detention under the patient's former section. During that period of inpatient care following recall, the patient is still a CTO patient, and therefore subject to all of the MHA powers and protections as a "community patient" unless otherwise specified. This includes such matters as medication, right to independent confidential legal advice, and eligibility to apply to the Tribunal (although this is rendered somewhat redundant by the automatic reference if the CTO is revoked, see Hearings below). Treatment requiring authorisation by a SOAD (second opinion doctor) is authorised for a CTO patient on the same CTO11 form whether or not they have been recalled, but a different part should be completed for recalled patients.
The 72-hour time limit on recall has caused more problems than it really ought. The time limit is very clear, and its end signifies the end of the lawful authority to detain the patient in a hospital if the revocation procedure has not been affected. The 72-hour period is a hiatus of the freedom of a CTO, but that CTO continues unless ended by revocation or if it is formally discharged. The clock is triggered by the patient's arrival at and detention in hospital as recorded on form CTO4, and ends when the patient is discharged from detention, discharged from the CTO or their CTO is revoked. If the CTO is to be revoked, that process must be completed within the 72 hours on form CTO5. The CTO5 form does not include a field to record the time the revocation takes effect, so this should be clearly recorded in the patient's notes. The paperwork needs to be checked by the Hospital Managers and any minor errors identified early can be rectified by the person who completed the forms within 14 days (s.15). There is no procedural reason that the papers should not first be screened by anyone on the ward familiar with the forms, such as a nurse, as many common errors are minor slips with obvious corrections to those who wrote them, but can cause confusion down the line or invalidate detention if not spotted quickly. Each organisation should have or be able to develop a straightforward checklist to assist.
Patients subject to recall can be transferred to another unit on the authority to detain of the CTO3 recall notice by completion of form CTO6. This formality is only necessary where the destination unit is managed by a different Trust or organisation. The patient's first detention under the power of recall must be to the hospital specified in the recall notice.
Recall to Outpatient Care
Recall from a CTO must be to a hospital, but we can find no explicit requirement that recall is to an inpatient bed, so theoretically a patient could be recalled to a hospital to receive outpatient care. However, the purpose of recall is to provide a short period of detention to prevent deterioration and re-establish optimum psychiatric care. The presumption that this will be inpatient care is evidenced, for example, by form CTO4 which is a record of the patient's "detention in hospital after recall". If a patient is recalled to a community base, for example, which is not open 24 hours a day, the patient clearly cannot be detained for 72 hours, could present out of hours and be deemed not to have complied with the recall notice, or may decline to leave the unit when it is due to close. The context in which recall to an outpatient facility may be appropriate would be if the recall is required solely to allow assessment by a SOAD or for renewal of the CTO under s.20. However, even in these instances it would be prudent to have mechanisms ready to transfer the recalled patient to an inpatient facility in case there are concerns that the patient's mental health is deteriorating and revocation may be needed.
While the terms of recall do not preclude recall to an outpatient facility, similarly recall to a general hospital would be lawful. This again may be an appropriate venue for review for s.20 renewal or SOAD assessment, however there will be few circumstances were this is the best course of action. The flexibility in the Act at present therefore allows for some variation in usual practice in cases where it is necessary for an individual patient. However, best practice will be to recall patients to psychiatric inpatient facilities where the care decisions for the patient are within both the words and the spirit of the law, and are not fettered by the limitations of the unit they have been recalled to. Local policy should assist clinicians in determining when to make use of this flexibility, and as above communication between teams and services will be paramount to ensuring the smooth management of recalled patients.
End of Recall Period
On conclusion of the 72-hour period of authorised detention, if the patient remains as an inpatient and their CTO has not been revoked, they can remain only as an informed and consenting voluntary patient (s.131). If they do not consent, they are free to leave, returning to the community on the terms of their CTO. If they lack mental capacity to consent, their care must comply with the Mental Capacity Act 2005 including consideration of whether it constitutes a deprivation of their liberty.
The treating clinicians should assess the patient and decide as soon as possible the onward care plan, including whether ongoing detention under recall is required. If not, the patient can be allowed to leave the hospital at any time, effectively ending the 72-hour recall period and returning to the CTO. It will be appropriate to consider how recall came about and whether the conditions of the CTO should be formally varied. The RC could also discharge the CTO at any time, and should do so if the CTO is no longer necessary. On the other hand, if it is apparent that more than 72 hours of inpatient care will be necessary, the CTO should be revoked, giving the patient (and staff) clarity as to the legal position.
Following recall – and only following recall – the Responsible Clinician can revoke the patient's CTO if the criteria for detention under s.3(2) are met. If so, the CTO is formally revoked by completion of the statutory form CTO5, following CTO3 (recall) and CTO4 (record of detention in hospital following recall). The patient's previous section 3 or 37, which has lain dormant behind the CTO, then returns to the fore and takes effect as a new period of detention.
Renewal dates for the new period of detention and Tribunal eligibility periods are as though the detention was new. The Hospital Managers must automatically refer the case to the Tribunal as soon as possible after the revocation (s.68(7)), which means the same or the next working day. When discharge planning begins again for this patient, a new CTO is again an option as it is for any other analogous patient.
If the patient is due to have a hearing with the Associate Hospital Managers, perhaps following renewal of their CTO, and this would fall to be heard during the recall period, consideration should be given to postponing the hearing. The AHMs would have to judge the case against the criteria of the patient's legal status at the time, and if no revocation has been effected they may find themselves seeking to make a judgment of the CTO when the patient is not in the community. However, the hearing should not be delayed too long. A situation of a CTO patient remaining admitted informally for a long period would warrant particular oversight and scrutiny.
Revocation of a CTO is one of the events which must prompt the Hospital Managers to refer the matter to the First-tier Tribunal. The resulting hearing is in addition to the patient's Tribunal appeal rights, which are as usual on their section, the revocation having begun a new period of eligibility.
Patients should be reminded of their rights under s.132 at the point of recall, as well as from time to time while subject to the CTO and the Code of Practice suggests other points in a patient's care when repeating this should be considered (4.29).
Emergency holding powers are not applicable to patients subject to CTO, and cannot be used to circumvent the recall and revocation process. These powers cannot be used during informal admission, during the recall period or at the end of the 72 hours to extend the recall period. This means that it is particularly important for clear record-keeping and communication such that patients subject to a CTO are not detained under emergency powers by a service unfamiliar with their legal status.
CTO recall is a challenging process for patients and clinicians, which used effectively can be a manifestation of the least restrictive principle and avoid longer-term admissions. In my view, recall without revocation can be an indication that a CTO is working – deterioration has been identified and steps taken before longer-term admission was necessary. It shows also that the CTO is effective for that patient, which supports its ongoing use in that case. The Code of Practice (29.51) notes that very frequent recalls should prompt review of the CTO to aid its effectiveness or consider whether it is not the appropriate framework for that patient.
It is understandable that there is confusion when unusual situations arise with these patients who are neither informal nor detained, both community patients and inpatients. It is imperative for good communication between services to allow good planning and efficient implementation of care decisions, but also there must be open communication between individuals so that difficult situations can be identified early and the correct answers or advice obtained. Problems in the CTO recall process can lead to illegality of detention which can become compounded over long periods if not rectified.
For further information or to discuss any aspect of this article, please contact Clementine Robertshaw, Associate.