KM v MHTS (2009) case B186/09
(1) In granting a Community Treatment Order, the Mental Health Tribunal for Scotland misdirected itself in law, so its decision was set aside: in considering Regulation 5 (permitted conflicts of interest between the two recommending doctors) the Tribunal applied a subjective test of what was in the RMO's mind, rather than objectively considering whether "failure to carry out the [independent second] medical examination would result in delay which would involve serious risk to the health, safety or welfare of the patient or to the safety of other persons" (Reg 5(1)(b)). (2) No facts were found by the Tribunal which could have justified a CTO so, rather than remitting the case to the Tribunal, the application for a CTO was refused.
Comparison with England
 In passing, it is interesting to notice here that, in contrast to the position in Scotland, in England the corresponding regulations, namely the Mental Health (Conflicts of Interest) (England) Regulations 2008, do appear to provide in effect for the application of a subjective test which involves considering what was in the mind of the medical practitioner or approved mental health professional at the material time. Thus paragraph (1)(b) of regulation 6 provides in short that, except where paragraph (3) applies, there will be a potential conflict of interest where the two doctors are members of the same clinical team or one of the doctors and the patient are members of the same team. Paragraph (3) provides (my emphasis) that paragraph (1)(b) "shall not prevent a registered medical practitioner giving a medical recommendation or an (approved mental health professional) making an application if, in their opinion, it is of urgent necessity for an application to be made and a delay would involve serious risk to the health or safety of the patient or others".
- Mental Health (Conflict of Interest) (Scotland) (No 2) Regulations 2005
- Mental Health (Conflicts of Interest) (England) Regulations 2008