McCann v The State Hospitals Board for Scotland - (11 Apr 2017)

There is no unjustified discrimination, when detained patients are compared with general public at liberty

Civil

In instant case, challenge by application for judicial review is to legality of comprehensive ban on smoking at State Hospital at Carstairs which State Hospitals Board for Scotland (“Board”) adopted by a decision taken at a meeting. Appellant challenge relates only to ban on smoking in grounds of State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere. Appellant suffers from a mental disorder. After committing a number of offences, he was detained without limit of time in State Hospital. Appellant argues that, impugned decision is invalid at common law on ground of ultra vires because, when so deciding, it did not adhere to principles laid down in Section 1 of Mental Health (Care and Treatment) (Scotland) Act 2003 or comply with requirements of subordinate legislation made under 2003 Act. Secondly, he submits that, 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 European Convention on Human Rights and Fundamental Freedoms (“ECHR”).

Impugned decision involves not only a comprehensive ban on smoking, which extends to smoking in grounds of State Hospital and on visits to a detained person’s home, but also a policy of searching both detained patients and visitors for and confiscating tobacco. While power to search for and confiscate tobacco is a necessary component of decision as it is the means by which comprehensive ban can be enforced. Comprehensive ban, viewed on its own, involves exercise of a power of management under National Health Service (Scotland) Act, 1978. But, supporting prohibition on possession of tobacco products and power to search for and confiscate such products fall within scope of 2003 Act and 2005 Regulations.

Mental Health (Safety and Security) (Scotland) Regulations 2005, do not set limits on things, the possession of which may be prohibited or restricted, and for which specified persons or visitors may be searched. Both heading of Section 286 of 2003 Act and title of 2005 Regulations refer to safety and security, but there is no provision in either section or 2005 Regulations which confines the things to items such as weapons which might threaten safety of others. Focus of Section and Regulations made under it, is on regulation of activities which impinge on autonomy of individuals. Obligation in Section 1(4) of 2003 Act is to discharge the function in manner that involves minimum restriction on freedom of patient that is necessary in circumstances. Board did not purport to act under 2003 Act, in instituting policy of prohibiting possession of tobacco products, searching for such products and confiscating them. Prohibition on having tobacco products and related powers to search and confiscate are illegal and fall to be annulled.

Lawful deprivation of liberty involving long term detention in an institution inevitably curtails a detainee’s private sphere and constraints which are a necessary part of detention would not fall within ambit of Article 8 of ECHR. In order to be “necessary in a democratic society” in interests of public health, interference must be proportionate. Tests for proportionality (in addition to tests of importance of legitimate objective and rational connection of measure to that objective) are (i) whether a less intrusive measure could have been used without unacceptably compromising achievement of objective and (ii) whether a fair balance has been struck between rights of individual and interests of community having regard to (a) severity of impact of measure on individual’s rights and (b) contribution of measure to achievement of objective. Board did not act disproportionately in imposing comprehensive smoking ban when it did. Circumstances of individual public institutions will vary and each enjoys an area of discretion on how and at what speed it implements its anti-smoking policy.

Further, there is no unjustified discrimination, when detained patients are compared with general public at liberty. Circumstances of such members of public are radically different as (i) they have opportunities to smoke in places which do not expose others to second-hand smoke, and (ii) public authorities do 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 are in public sphere and not acting in course of their employment. The documents reveal the problems of allowing smoking out of doors in a secure hospital. Such problems do not occur among general public. Differences between the anti-smoking policies applied to them and comprehensive ban in State Hospital can readily be justified. Supreme Court allowed the appeal only to extent that, prohibition on having tobacco products and search and confiscation regime in impugned decision are unlawful under domestic law because they do not comply with 2003 Act and 2005 Regulations.

Tags : SMOKING BAN LEGALITY