"This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. ... Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms. Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty. ... [T]he prohibition on having tobacco products and the related powers to search and confiscate are in my view illegal and fall to be annulled. ... [B]ut for the illegality under our domestic law of the prohibition of possession of tobacco products, the searches and the confiscation of tobacco products which are part of the impugned decision, I would have held that the decision was not contrary to Mr McCann’s article 8 right to respect for his private life. ... The article 14 challenge ... fails."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
McCann v State Hospitals Board for Scotland
2016 Oct 11; 2017 April 11
Baroness Hale of Richmond DPSC, Lord Mance , Lord Wilson , Lord Reed , Lord Hodge JJSC
Human rights — Respect for private life — Smoking ban — Scottish state hospital introducing comprehensive ban on smoking — Ban extending to hospital grounds and home visits — Procedures introduced for searching patients and visitors and confiscating tobacco products — Detained patient challenging extent of ban and search and confiscation procedures — Whether complying with domestic law — Whether breaching Convention rights to private life and non-discrimination — National Health Service (Scotland) Act 1978 (c 29), s 102(4) — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14 — Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ss 1, 286 — Mental Health (Safety and Security) (Scotland) Regulations 2005 (SSI 2005/464), regs 2, 4, 5
The petitioner, who suffered from a mental disorder, was detained in a state hospital in Scotland, following his conviction for a number of offences. The hospital operated a partial ban on smoking, under which smoking was allowed in the hospital grounds, but that caused operational difficulties. Following a consultation process the State Hospitals Board for Scotland decided to introduce a comprehensive ban on smoking at the hospital, which would prohibit detained patients from smoking anywhere. The petitioner sought judicial review, challenging the ban in so far as it prohibited smoking or the possession of tobacco products in the hospital grounds and on home visits and established procedures for searching patients and visitors for tobacco products and confiscating them, on the grounds that (i) the board’s decision was ultra vires because it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, including the principle under section 1(4) that, in the discharge of its functions under the Act, restrictions on the freedom of patients should be minimised, or comply with the requirements in the Mental Health (Safety and Security) (Scotland) Regulations 2005, made under section 286 of the 2003 Act, concerning the searching of patients and their visitors; (ii) the decision was unlawful because it unjustifiably interfered with his private life, contrary to article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; and (iii) the board, by implementing the comprehensive smoking ban, had treated him in a discriminatory manner, contrary to article 14 of the Convention in combination with article 8, in comparison with people detained in prison, patients in other hospitals or members of the public who remained at liberty. The Lord Ordinary declared that the decision was unlawful so far as it affected the petitioner because it was not taken in accordance with the 2003 Act principles and because it breached his Convention rights under articles 8 and 14. The Second Division of the Inner House of the Court of Session allowed the board’s reclaiming motion, holding that the board, in deciding upon and implementing the smoking ban, had acted solely under its power of management in section 102(4) of the National Health Service (Scotland) Act 1978 and, therefore, had not been required to comply with the 2003 Act principles, that article 8 was not engaged, and that there had been no discrimination under article 14.
On the petitioner’s appeal—
Held, appeal allowed in part. (1) The comprehensive ban, viewed on its own, involved the exercise of a power of management under the 1978 Act. However, the supporting prohibition on possession of tobacco products and the power to search for and confiscate such products fell within the scope of the 2003 Act and the 2005 Regulations. The devising of such policies and carrying out of such measures were, therefore, functions under the 2003 Act to which the principles under section 1 applied, including the obligation under section 1(4) to discharge those function in a manner which involved the minimum restriction on the freedom of the patient necessary in the circumstances. In instituting the policy of prohibiting the possession of tobacco products, searching for such products and confiscating them, there had been no consideration of that principle by the board nor had there been compliance with the obligations in the 2005 Regulations. Accordingly, the prohibition on having tobacco products and the related powers to search and confiscate were illegal and fell to be annulled (paras 34–41, 68).
(2) The lawful deprivation of liberty involving long-term detention in an institution inevitably curtailed a detainee’s private sphere and constraints which were a necessary part of the detention would not fall within the ambit of article 8 of the Convention. However, the comprehensive smoking ban was within the ambit of article 8 since there was a need to protect the residual autonomy of a person who had been subjected to long-term therapeutic detention by requiring that further intrusion into his private life to be justified. The decision was not in accordance with the law within article 8.2, since the board had failed to address the requirements of section 1(4) of the 2003 Act and the 2005 Regulations in relation to the part of the ban relating to the prohibition of possession, searches for and confiscation of tobacco products. Accordingly, the prohibition against having tobacco products, and the power to search patients in and visitors to the state hospital for such products and confiscate them, infringed the petitioner’s right under article 8 (paras 43, 50–55, 57–58).
(3) The differences in treatment between detained patients in the state hospital and patients in other National Health Service facilities or prisoners were a matter of timing rather than policy since the Scottish Government was committed to extending the ban on smoking to all NHS institutions and to prisons. The circumstances of individual public institutions would vary and each enjoyed an area of discretion on how and at what speed it implemented its anti-smoking policy. The documented difficulties of the partial smoking ban in the state hospital justified the introduction of the comprehensive smoking ban at the state hospital when it occurred. It was unnecessary, therefore, to consider the differences between the circumstances of the petitioner on the one hand and the circumstances of those other groups of people on the other. Further, there was no unjustified discrimination when detained patients were compared with the general public at liberty since the circumstances of members of the public were radically different as they had opportunities to smoke in places which did not expose others to second-hand smoke and the public authorities did not have any legal duty of care to create a safe therapeutic environment for them or to protect their own staff from injury to health when they were in the public sphere and not acting in the course of their employment. The differences between the anti-smoking policies applied to members of the public and the comprehensive ban in the state hospital could, therefore, readily be justified. Accordingly, the board’s decision did not breach article 14 of the Convention (paras 64–65, 67–68).
Per curiam. But for the problem of the domestic legal basis of part of the decision, the comprehensive ban on smoking and the supportive measures of the prohibition of possession and powers of search and confiscation would have been a proportionate response to the legitimate aim of the protection of health, which is recognised in article 8.2 of the Convention, through its promotion and safeguarding of the health of both patients and staff at the state hospital (paras 44, 62).
Decision of the Second Division of the Inner House of the Court of Sessionreversed in part.
Jonathan Mitchell QC, David Leighton (both of the Scots Bar) and Rachel Barrett (instructed by McKenna Law Practice, Glenrothes) for the petitioner.
Kenneth Campbell QC and Julius Komorowski (both of the Scots Bar) (instructed by Central Legal Office, Edinburgh) for the board.
Reported by: Jill Sutherland, Barrister.