K, Petitioner

The House of Lords considered the meaning and effect of the requirements for medical recommendations supporting a community care order under section 35B(8) of the Mental Health (Scotland) Act 1984, read together with the provisions for making community care orders in section 35A and the duty to discharge in section 33(3). The court held that the two conditions in section 35B(8) must be read cumulatively: the medical practitioner’s opinion that detention under section 17(1) does not apply must be understood as conditional upon a community care order being made and coming into force. Read in context with sections 35A(6), (7) and (8), the medical recommendation does not require an immediate discharge under section 33(3) and does not render an application for a community care order incompetent.

This case arose from an application by the responsible medical officer for a community care order for the petitioner, who remained liable to be detained under Part V of the Mental Health (Scotland) Act 1984 but was on leave of absence. The responsible medical officer completed the prescribed medical recommendation (in terms modelled on section 35B(8)) expressing the opinion that the patient required medical treatment but that the grounds for admission and detention in hospital under section 17(1) did not apply. The patient sought judicial review, arguing that that expression of opinion obliged the responsible medical officer to make an immediate order for discharge under section 33(3), rendering the subsequent application for a community care order ultra vires.

The Lord Ordinary dismissed the petition and the First Division refused the reclaiming motion. On appeal to the House of Lords, the central issue was the proper construction of section 35B(8) read in context with section 35A (particularly subsections (6), (7) and (8)) and section 33(3). The court framed the issue as whether the medical practitioner’s statement in the prescribed form must be read as requiring immediate discharge, or whether it should be read as a conditional opinion tied to the making and coming into force of a community care order.

The House of Lords concluded that the two conditions in section 35B(8) must be read together and against the statutory scheme: the medical recommendation is a conditional recommendation that discharge from liability to detention would be appropriate upon the community care order coming into force. That construction avoids the absurd consequence that making the recommendation would itself require immediate discharge and thus defeat the application. The appeal was dismissed.

• Nature of application: judicial review challenging the lawfulness of a responsible medical officer’s failure to discharge and the competency of a subsequent application for a community care order.
• Issues framed: (i) construction of section 35B(8) and the prescribed form; (ii) interaction between section 35B(8) and the duty to discharge in section 33(3); (iii) whether a medical recommendation amounted to a mandatory immediate discharge.
• Court’s reasoning: the subsection’s two conditions must be read cumulatively; contextual provisions (section 35A(6),(7),(8)) preserve liability to detention until the community care order comes into force; the medical recommendation is therefore conditional and does not trigger immediate discharge under section 33(3).

Appeal dismissed. The House of Lords held that section 35B(8)(a) must be read together with section 35B(8)(b) and with the scheme in section 35A so that a medical recommendation expresses a conditional opinion that discharge would be appropriate on the coming into force of a community care order; it does not oblige an immediate discharge under section 33(3).

The Lord Ordinary (Lord Marnoch) dismissed the petitioner’s judicial review application. A reclaiming motion to the First Division was refused (Lord President Rodger, Lord Cameron of Lochbroom and Lord Coulsfield). Permission to appeal was granted to the House of Lords, which dismissed the appeal. (No neutral citations for the lower decisions are given in the judgment.)