Krol v Craig (Scotland)

The conditions in section 35B(8) of the Mental Health (Scotland) Act 1984 must be read together. The medical recommendation required by that subsection is conditional on a community care order being made and is not an immediate opinion that the patient must be discharged under section 33(3). A responsible medical officer who signs the form thereby recommends discharge on the coming into force of a community care order, not immediate discharge.

This appeal concerned the construction of provisions introduced into the Mental Health (Scotland) Act 1984 by the Mental Health (Patients in the Community) Act 1995. The issue was whether a medical recommendation under section 35B(8)(a) that the statutory conditions for a community care order were satisfied obliged the responsible medical officer to make an immediate discharge order under section 33(3). The Lord Ordinary dismissed the judicial review. The First Division refused the reclaiming motion. The appellant appealed to the House of Lords. The central question was whether the subsection must be read cumulatively with the companion condition in 35B(8)(b) and the wider statutory scheme.

1. Disposition: The appeal was dismissed unanimously by the House of Lords (Lords Hope, Slynn, Lloyd, Hoffmann and Hutton).
2. Primary legal holding (per Lord Hope of Craighead): Section 35B(8) must be read so that its two conditions are cumulative. The medical recommendation is a conditional opinion that discharge will be appropriate when a community care order comes into force, not an immediate opinion that discharge under section 33(3) is due. This reading reflects the statutory scheme which preserves liability to detention until the community care order has been made and come into force (see the scheme in sections 35A(5)–(8) and 35A(6)–(7)).
3. Construction approach: The words of 35B(8)(a) taken alone appear to conflict with the scheme. The correct method is to read the two conditions together and to construe the first condition as referring to suitability for supervised community treatment on the coming into force of a community care order. This avoids the absurd result that a recommendation for a community care order would immediately trigger statutory discharge and so render the application incompetent.
4. Practical effect: A medical practitioner completing the prescribed form (form 19) gives a conditional recommendation that, if a community care order is made and the necessary arrangements are in place, detention in hospital will no longer be necessary. The decision whether to make the order and when it may come into force lies with the sheriff.
5. Conclusion and order: The House dismissed the appeal and upheld the decisions below. No alteration of the statutory wording was required; the conditions should be read together to give them sensible effect.

• House of Lords: Appeal dismissed ([1998] UKHL 44).
• First Division, Court of Session: Reclaiming motion refused (decision reported in the judgment text; First Division: Lord President (Rodger), Lord Cameron of Lochbroom and Lord Coulsfield).
• Lord Ordinary: Petition for judicial review dismissed by Lord Marnoch (interlocutor recorded in the judgment).