K v Craig

The statutory conditions governing a medical recommendation for a community care order must be read together and in the context of the legislative scheme. The recommendation is conditional: although hospital detention will cease if the order comes into force, liability to detention continues until then.

An opinion supporting such a recommendation therefore does not itself trigger the responsible medical officer’s duty under section 33(3) of the Mental Health (Scotland) Act 1984 to discharge the patient immediately. This construction preserves compulsory treatment until enforceable arrangements for supervised treatment in the community are available.

The appellant, who suffered from schizophrenia, remained liable to detention under the Mental Health (Scotland) Act 1984 while living in the community on leave of absence. Her responsible medical officer recommended a community care order and applied to the sheriff for that order.

The appellant sought judicial review. She contended that the recommendation’s statement that the grounds for hospital admission and detention did not apply obliged the officer to discharge her immediately under section 33(3), making the subsequent application ultra vires. Lord Marnoch dismissed the petition. The First Division refused the appellant’s reclaiming motion, holding that the discharge duty did not apply where the officer was seeking a community care order.

The central issue was whether the opinion required by section 35B(8)(a) triggered an immediate duty to discharge the patient before a community care order could be made.

1. The House unanimously dismissed the appeal. Lord Hope of Craighead delivered the leading speech. Lord Slynn of Hadley, Lord Lloyd of Berwick and Lord Hutton agreed with his reasons. Lord Hoffmann reached the same result by closely related reasoning.

2. Per Lord Hope, the two conditions in section 35B(8) of the Mental Health (Scotland) Act 1984 must be read cumulatively. That follows by necessary implication from the subsection’s opening words and from the statutory context. Reading section 35B(8)(a) separately would require immediate discharge and thereby make the contemplated application for a community care order incompetent. Parliament cannot have intended that result.

3. Per Lord Hope, the medical recommendation is conditional. The practitioner states that continued liability to hospital detention will cease to be appropriate when a community care order comes into force because that order can secure treatment and supervision in the community. The recommendation does not express an opinion that the patient must be discharged immediately.

4. Per Lord Hope, liability to detention is a prerequisite for an application under section 35A(1). Sections 35A(6) and (7) preserve that liability while the application is determined and the necessary arrangements are made. Section 35A(8) terminates it when the order comes into force. This continuity preserves the existing means of ensuring treatment until the alternative regime is available and enforceable. The sheriff, rather than the medical practitioner, decides whether to make the order and whether the necessary arrangements exist.

5. Per Lord Hope, the opinion expressed in the respondent’s recommendation therefore did not engage the immediate discharge duty in section 33(3). Lord Hoffmann considered that section 35B(8)(a) contained a linguistic error or infelicity: “do not apply” conveyed the conditional sense “would not apply” if a community care order were made. The contextual meaning was clear and could be given effect without offending any principle of statutory construction.

1. House of Lords: The appeal was dismissed unanimously: [1998] UKHL 54.

2. First Division of the Court of Session: The reclaiming motion was refused. The court held that, by necessary and irresistible implication, the duty to discharge under section 33(3) did not apply while the responsible medical officer was applying for a community care order.

3. Lord Ordinary: Lord Marnoch dismissed the judicial review petition. He held that the statement concerning the inapplicability of the hospital detention grounds referred to the patient’s condition at or about the time of the application to the sheriff.