03 December 1998
At delivering judgment, on 3 December 1998—
The problem which this new scheme was intended to solve is that which arises where a patient, having been compulsorily admitted to hospital for treatment for mental illness, responds to that treatment, is discharged back into the community but fails to continue to take the medication which has been prescribed for him with the result that compulsory re-admission to hospital becomes necessary. The aim was to provide an alternative regime, to ensure that the necessary treatment for the mental illness was maintained under supervision in the community after the patient's discharge from the hospital. This was consistent with the principle which has informed the entire system which is set out in Part V of the Act. This is that a mentally disordered patient should not be liable to compulsory detention in a hospital for any longer than is necessary.
The difficulty which this case has identified can best be explained by setting out a brief narrative of the facts. The appellant, who suffers from schizophrenia, was admitted to hospital in July 1987 and detained there in pursuance of an application for admission under sec 18(1) of the Act. The effect of that application was that she thereupon became liable to be detained in a hospital. This was because it was considered that she was suffering from mental disorder of a nature or degree which made it appropriate for her to receive medical treatment in a hospital, that it was necessary for her health or safety that she should receive such treatment and that the treatment could not be provided unless she was detained under Part V of the Act: see sec 17(1). Authority for her detention was renewed from time to time under sec 30, in the light of reports on her condition and as to the need for her detention which were furnished to the managers of the hospital by her responsible medical officer. In 1994 she was given leave of absence from the hospital under sec 27 and she returned to live in the community. But for the time being she nevertheless retained her status of being liable to be detained in a hospital. This was because a person who is granted leave of absence under that section remains liable to be recalled to the hospital by the responsible medical officer at any time until he or she has ceased to be liable to be detained under Part V of the Act.
On 9 October 1996 the appellant was examined by the respondent, who was at that time her responsible medical officer. He decided that it would be appropriate to make an application to the sheriff under sec 35A(1) for an order—described in that subsection as a ‘community care order’—that, instead of continuing to be liable to be detained in a hospital, the respondent was to be subject to the conditions specified in the order with a view to ensuring that she received medical treatment and the after-care services provided for by sec 8 of the Act. Section 35A(1) provides that only those patients who are liable to be I detained in a hospital in pursuance of an application for admission may be made the subject of a community care order. It is common ground that the appellant still had that status when the respondent was examining her, although she had leave of absence from the hospital under sec 27.
section 35A(8) provides that the patient is to cease to be liable to be detained in a hospital under Part V of the Act on the coming into force of a community care order. Section 35A(5) provides that the sheriff may defer the making of a community care order until he is satisfied that the arrangements which he B considers necessary for the provision of medical treatment and after care services to the patient have been made. Subsections (6) and (7) of the same section make it clear that, once the order is made, the patient's liability to be detained in a hospital is to continue, even if it would have ceased in other circumstances, until the order has come into force. These provisions are designed to ensure that the liability to be detained in a hospital, which enables the patient to be detained compulsorily to receive treatment there, continues until the arrangements to ensure that that treatment will be provided to the patient under supervision in the community have been made and have become enforceable. Section 35B provides that an application for a community care order must be made in the prescribed form and be accompanied by two medical recommendations, which also must be in the prescribed form.
Section 35B(8) is in these terms: ‘The medical recommendations referred to in subsection (7)(a) above shall consist of statements of opinion that both the following conditions are satisfied, namely—(a) that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment, but that the grounds set out in section 17(1) of this Act for admission to and detention in a hospital do not apply to the patient; and (b) that the patient requires to be subject to a community care order—(i) with a view to ensuring that he receives medical treatment and the after-care services to be provided for him under section 8 of this Act; and (ii) in the interests of his health or safety or with a view to the protection of other persons …’
The prescribed form for the medical recommendation, which is to be found in form 19 in Sched 2 to the Mental Health (Prescribed Forms) (Scotland) Regulations 1996, begins by stating that the medical practitioner who is to sign the form recommends that the patient be made the subject of a community care order in accordance with Part V of the Mental Health (Scotland) Act 1984. It then provides for the opinion which the medical practitioner has formed on the two critical matters to be stated in the same words as those used in sec 35A(8). These are (a) that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment but the grounds for admission to and detention in hospital set out in sec 17(1) do not apply to the patient, and (b) that a community care order is necessary for the patient with a view to ensuring that he or she receives medical treatment and the after-care services to be provided under sec 8 of the Act. It is clear from the wording of the form and the statutory context in which the recommendation is made that the opinion which the medical practitioner is required to form is that the patient requires medical treatment for the mental disorder but that, as to the means for ensuring that he or she receives that treatment, detention in a hospital is no longer necessary because the patient can be provided with the requisite supervision to ensure that the treatment is continued under a community care order.
The respondent signed a recommendation to this effect on 9 October 1996. On 11 October 1996 he completed and lodged with the sheriff an application for a community care order in terms of sec 35A(1) of the Act. But on 29 October 1996 the appellant presented a petition for judicial review in which she sought declarator that she was not on 9 October 1996 suffering from a mental disorder of a nature or degree that made it appropriate for her to be detained in a hospital for medical treatment, that the respondent's failure to discharge her from detention on that date was a breach of an obligation imposed on him by sec 33(3) of the Act and that his application for a community care order was ultra vires. Her argument was that sec 33(3) of the Act required the respondent to make an order for her discharge on 9 October 1996, in view of the opinion which he had expressed when he was completing his recommendation on that date for a community care order to the effect that the grounds for admission and detention in a hospital did not apply to her, and that for this reason it was unlawful for him to apply on 11 October 1996 for a community care order.
Section 33(3) is in these terms: ‘The responsible medical officer or the Mental Welfare Commission shall make an order for discharge in respect of a patient where he is or they are satisfied that—(a) he is not suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or (b) it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.’
The Lord Ordinary, Lord Marnoch, dismissed the application on the ground that, in order to give an intelligible meaning to the legislation, the proviso that the grounds set out in sec 17(1) did not apply to the patient was intended to refer only to the patient's condition at or about the time of the application to the sheriff. The appellant's reclaiming motion against his interlocutor was refused by the First Division (the Lord President (Rodger), Lord Cameron of Lochbroom and Lord Coulsfield) on different grounds, namely that it was clear by necessary and irresistible implication that the duty to discharge a patient in sec 33(3) did not apply where the responsible medical officer was applying for a community care order. It is against that decision that the appellant has now appealed to this House.
It is clear that it is an important part of the duties of the responsible medical officer to keep the condition of the patient under review. If he comes to be of the opinion that the patient is no longer suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment, or that it is not necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment, he is obliged then by sec 33(3) to make an order for his discharge. The effect of the order for discharge is that the patient thereupon ceases to be liable to be detained in a hospital under Part V of the Act. This means that compulsory measures to ensure that the patient receives treatment, whether in hospital or by means of a community care order, will no longer be available. So it is impossible to treat the opinion which has to be expressed in a recommendation for a community care order, which can only be made while the patient remains liable to be detained in a hospital, as amounting to an opinion that the time has come for the responsible medical officer to make an order for the patient's discharge from that liability. Yet the language in which I sec 35B(8)(a) is expressed, and which has been reproduced in the prescribed form, is so close to that used in sec 33(3) as to suggest, on a strict reading of it, that the responsible medical officer has no alternative but to make an immediate order for discharge—thereby rendering the application for the community care order which the medical practitioner has recommended incompetent.
I agree with the judges of the First Division that this reading of sec 35B(8)(a) cannot have been intended by Parliament. It is unfortunate that the legislator has chosen to express this condition in rather pedantic language which has tended to obscure the meaning which ought to be given to it. But I think that it is clear, by necessary implication from the opening words of the subsection, which requires a statement of opinion by the medical practitioner that both of the two conditions which it sets out are satisfied, that the conditions must be read together and not separately. This is plain also from the whole context which explains the nature and effect of a community care order. One of its characteristics is that on its coming into force the patient will cease to be liable to be detained in a hospital: sec 35A(8). It was no doubt for this reason that the medical practitioner is required to express the opinion that the first condition which is set out in sec 35B(8)(a) is satisfied. But the scheme as a whole shows that Parliament was careful to provide that the liability to be so detained, which is a prerequisite of the application for a community care order, is to continue until the order comes into force: sec 35A(6) and (7). The purpose which the legislation was designed to achieve was to preserve the original means of ensuring that the patient received the treatment which was needed until the alternative means of ensuring this were available and had become enforceable.
I do not think that it is necessary in this case to alter the words which have been used in the statute in order to give them the meaning which they must be given in order to achieve what they were intended to mean by Parliament. The technique which I would prefer to adopt, while recognising that the words which have been used are inadequate when the conditions are read separately, is to give to each condition the meaning which the context tells us the two conditions must bear when read cumulatively.
Taken as a whole, the medical recommendation is that the patient should be made the subject of a community care order in accordance with Part V of the Act. The medical practitioner will be aware that liability to be detained in a hospital is a prerequisite of the making of the application but that sec 35A(8) provides that, if such an order is made, the patient's liability to be detained in a hospital will cease when it comes into force. He will also be aware that subsecs (6) and (7) of sec 35A provide that that liability is to continue until the order has been determined and come into force, notwithstanding the fact that he has ceased in the meantime to be liable to be so detained in pursuance of an application for admission under sec 18(1). So, by expressing the opinions which the two conditions that are set out on the prescribed form require him to express, he is in effect saying that he is of the opinion that it is no longer appropriate for the patient to be liable to be detained for medical treatment in a hospital because he considers that steps can be taken by means of a community care order to ensure that he receives the treatment which he needs under supervision in the community. But the decisions as to whether a community care order should be made and as to whether the necessary arrangements are available for it to come into force are for the sheriff to take, not the medical practitioner. For these reasons the medical recommendation which is expressed in terms of the first condition cannot be read as amounting to an expression of opinion that the time has come for the patient to be discharged immediately from the liability to be detained in a hospital. It is a conditional recommendation, to the effect that the medical practitioner is of the opinion that discharge from that liability will be appropriate upon the coming into force of the community care order.
If this approach is adopted, there is no longer any force in the argument which senior counsel advanced on the appellant's behalf that doctors, patients and their relatives have been left in a state of doubt and uncertainty. The opinion which the respondent expressed on 9 October 1996 did not oblige him to make an order on that date under sec 33(3) for the appellant's discharge, as it was expressed in the context of a recommendation that she should be made the subject of a community care order. I would dismiss this appeal.
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