McCann v The State Hospitals Board for Scotland

A hospital’s general policy prohibiting detained patients from possessing specified articles, supported by powers of search and confiscation, may constitute the discharge of functions under the Mental Health (Care and Treatment) (Scotland) Act 2003. Such measures must comply with the statutory principles, including use of the minimum restriction on patients’ freedom that is necessary.

Long-term therapeutic detention makes a patient’s remaining sphere of personal autonomy especially important. A comprehensive smoking ban therefore interferes with private life under article 8 and requires justification. Although protecting health justified the ban in substance, its enforcement regime was unlawful because the statutory safeguards had not been followed.

The appellant, a detained mental health patient, challenged the State Hospitals Board for Scotland’s comprehensive prohibition on smoking at the State Hospital. The policy extended to the hospital grounds and home visits. It also prohibited possession of tobacco and authorised searches and confiscation.

The Lord Ordinary declared the decision unlawful under domestic law and articles 8 and 14 of the European Convention on Human Rights. The Inner House allowed the Board’s reclaiming motion in [2014] CSIH 71. Its majority held that article 8 was not engaged, while all three judges considered the policy justified.

The issues before the Supreme Court were whether the enforcement measures fell within the Mental Health (Care and Treatment) (Scotland) Act 2003, whether the comprehensive ban interfered with article 8 rights, and whether it was unjustifiably discriminatory under article 14.

1. The appeal was allowed in part. Lord Hodge, with whom Lady Hale, Lord Mance, Lord Wilson and Lord Reed agreed, held that the smoking prohibition, considered alone, was an exercise of the Board’s management power under the National Health Service (Scotland) Act 1978. However, the supporting prohibition on possessing tobacco and the search and confiscation regime fell within the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Mental Health (Safety and Security) (Scotland) Regulations 2005.

2. The 2003 Act was not confined to individual care and treatment. Its safety and security provisions regulated measures affecting personal autonomy, including restrictions on possessions, searches and confiscation. They applied equally to measures implementing a general management policy. Consequently, the section 1 principles applied so far as relevant, particularly the requirement to impose the minimum restriction on patients’ freedom that was necessary.

3. The Board had proceeded solely under its 1978 Act management power. Although its consultations might have met some section 1 requirements, it had not considered the minimum-restriction obligation or complied with the Regulations’ notification and record-keeping requirements. The prohibition on possessing tobacco and the related search and confiscation powers were therefore unlawful and liable to annulment.

4. The comprehensive smoking ban interfered with private life under article 8. A person lawfully detained retains civil and Convention rights except to the extent removed expressly or by necessary implication. Therapeutic detention severely restricts the private sphere. Courts must therefore protect the patient’s residual autonomy, and choices which remain may more readily become a core part of private life. The Supreme Court disagreed with the contrary approach adopted by the majority below and in the Rampton Hospital case.

5. The enforcement measures were not “in accordance with the law” and therefore infringed article 8. Apart from that defect, the comprehensive policy pursued the legitimate objective of protecting patients and staff from the health effects of smoking, was rationally connected to that objective, and was proportionate. The failed partial ban had created health, welfare, operational and security difficulties, and no less intrusive measure would have achieved the objective without unacceptable compromise.

6. The article 14 challenge failed. Differences between the State Hospital, other NHS facilities and prisons arose from the timing and circumstances of implementation. Institutions retained discretion over the pace of anti-smoking policies. Members of the public were also in a radically different position because they could smoke without exposing others and were not subject to a therapeutic institution’s duties.

7. The parties were invited to make written submissions on the appropriate form of order within 21 days.

1. United Kingdom Supreme Court: The appeal was allowed in part. The prohibition on possessing tobacco and the search and confiscation regime were held unlawful. The article 14 challenge and the remaining challenge to the smoking ban were dismissed.

2. Inner House of the Court of Session: In [2014] CSIH 71, the Second Division allowed the Board’s reclaiming motion and refused the petition. The majority held that the Mental Health (Care and Treatment) (Scotland) Act 2003 did not apply and article 8 was not engaged. Lady Paton considered article 8 engaged, but all three judges found the policy justified and rejected the article 14 claim.

3. Outer House of the Court of Session: The Lord Ordinary declared the decision unlawful in its application to the appellant because the Board had not followed the 2003 Act principles and had breached articles 8 and 14. No damages were awarded; the declarations were treated as just satisfaction.