Page values for "McCann v State Hospitals Board for Scotland (2017) UKSC 31"

"_pageData" values

_creationDate2017-06-15 11:45:10 AM
_modificationDate2019-05-16 2:01:59 PM
_categories2017_cases Cases ICLR_summary Judgment_available_on_Bailii Miscellaneous
_pageNameOrRedirectMcCann v State Hospitals Board for Scotland (2017) UKSC 31

"Cases" values


Scottish smoking ban


"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."

Detail==Note== Judicial history: see [[Re CM (Judicial Review) (2013) CSOH 143]]
JudgesHale Mance Wilson Reed Hodge
PartiesMcCann State Hospitals Board for Scotland
CourtSupreme Court
NCN[2017] UKSC 31
ICLR[2017] WLR(D) 268
Other_citations2017 GWD 12-169 (2017) 156 BMLR 35 [2017] WLR 4575 [2017] 1 WLR 1455 2017 SLT 451 :[2017] 4 All ER 449 [2017] MHLO 22
External_links* Supreme Court press summary]† *[ ICLR]