Krol v. Craig (Scotland)

The case concerns the proper construction of the requirements for medical recommendations for a community care order under section 35B(8) of the Mental Health (Scotland) Act 1984 and their relationship to the discharge duty in section 33(3). The House held that the two conditions in section 35B(8) must be read together: the medical recommendation is to be understood as a conditional opinion that detention in hospital is no longer necessary provided a community care order is made and comes into force. In that context, a responsible medical officer is not obliged by section 33(3) to make an immediate order for discharge when completing a recommendation for a community care order. The appeal was therefore dismissed.

This is an appeal by way of stated case and judicial review arising from the respondent's application for a community care order under the Mental Health (Scotland) Act 1984 as amended by the Mental Health (Patients in the Community) Act 1995. The appellant, a patient with schizophrenia who had been detained under Part V of the 1984 Act and who was on leave of absence, challenged the responsible medical officer's medical recommendation and subsequent application for a community care order. She sought a declarator that on the date of the medical recommendation she was not suffering from mental disorder of a nature or degree to justify detention, that the responsible medical officer had breached the discharge duty in section 33(3), and that the application for a community care order was ultra vires.

Procedural history: The Lord Ordinary (Lord Marnoch) dismissed the judicial review petition. A reclaiming motion to the First Division of the Court of Session was refused by the First Division (the Lord President, Lord Cameron of Lochbroom and Lord Coulsfield). The appellant then appealed to the House of Lords.

Issues framed by the court:

• Whether the wording of section 35B(8)(a) should be read as requiring an immediate discharge under section 33(3) when a responsible medical officer signs a medical recommendation stating that the section 17(1) grounds for detention "do not apply".
• Whether the medical recommendation required by section 35B(8) can be given consistently with the continuing statutory regime which preserves liability to detention until a community care order comes into force (sections 35A(5)-(8)).

Court's reasoning and decision: The House analysed the context and purpose of the community care order regime and held that the two conditions in section 35B(8) must be read cumulatively. The medical recommendation is a conditional opinion that hospital detention is no longer appropriate provided that the alternative regime (a community care order) is made and comes into force. The statutory scheme (notably sections 35A(5)-(8)) preserves the patient's existing liability to detention until arrangements for community supervision are in place. Accordingly, the responsible medical officer's recommendation did not trigger an immediate duty to discharge under section 33(3), and the application for a community care order was not rendered incompetent. The appeal was dismissed.

Appeal dismissed. The House concluded that section 35B(8) must be read so that the medical recommendation is a conditional opinion that discharge from liability to detention will be appropriate if, and when, a community care order is made and comes into force; it does not oblige an immediate discharge under section 33(3).

Lord Marnoch (Lord Ordinary) dismissed the petition for judicial review. A reclaiming motion to the First Division (the Lord President, Lord Cameron of Lochbroom and Lord Coulsfield) was refused. The appellant's subsequent appeal to the House of Lords resulted in dismissal ([1998] UKHL 44).