McCann v The State Hospitals Board for Scotland

The Supreme Court considered a judicial review challenge to a comprehensive ban on smoking at the State Hospital, Carstairs. The appellant argued the ban was ultra vires because the Board had failed to apply the principles in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and had not complied with subordinate legislation made under that Act, and that the ban infringed his rights under article 8 taken alone and article 14 taken with article 8 of the ECHR.

The court held that the Board’s decision to create a comprehensive no-smoking environment was an exercise of management powers under the National Health Service (Scotland) Act 1978, but that the supporting measures — the prohibition on possession of tobacco products and the power to search for and confiscate such products — fell within the scope of section 286 of the 2003 Act and the Mental Health (Safety and Security) (Scotland) Regulations 2005 and therefore required compliance with the section 1 principles and the conditions and recording requirements of the Regulations.

Because the Board did not apply the section 1(4) obligation to adopt the minimum restriction necessary nor comply with the relevant notification and recording requirements, those supporting measures were unlawful. The comprehensive ban and its supporting measures engage article 8, but save for the unlawfulness of the possession/search/confiscation regime the decision would have been a proportionate interference with the protection of health. Article 14 complaints failed.

Background and parties:

• The appellant, Mr McCann, a long-term detained patient at the State Hospital, challenged the Board’s decision to implement a comprehensive smoking ban (including in hospital grounds and on home visits) adopted 25 August 2011 and implemented 5 December 2011. The Board is the State Hospitals Board for Scotland.
• Proceedings below: the Lord Ordinary (Lord Stewart) found the decision unlawful for failure to apply the 2003 Act principles and for breaching articles 8 and 14; the Board appealed to the Inner House which allowed the appeal. The matter reached the Supreme Court by way of appeal.

Nature of the claim and relief sought:

• Judicial review seeking reduction (annulment) of the impugned decision, a declarator of Convention breaches and damages as just satisfaction.

Issues framed by the Court:

1. Whether the Board’s decision was ultra vires at common law because it failed to comply with the section 1 principles of the Mental Health (Care and Treatment) (Scotland) Act 2003 or with subordinate regulations made under that Act.
2. Whether the comprehensive smoking ban and supporting enforcement measures unjustifiably interfered with the appellant’s right to private life under article 8 ECHR.
3. Whether the measures discriminated contrary to article 14 in conjunction with article 8 when compared with prisoners, other hospital patients or the general public.

Court’s reasoning and conclusions:

• The court accepted that the decision to make the hospital a smoke-free environment, insofar as it was an overall management policy, was made under the Board’s management powers conferred by the National Health Service (Scotland) Act 1978. However, the prohibition on possession of tobacco products and the related powers to search and confiscate were within the ambit of section 286 of the 2003 Act and the Mental Health (Safety and Security) (Scotland) Regulations 2005, because those measures impinge on detained patients’ autonomy and are the type of security/safety measures the Regulations regulate.
• Accordingly, the Board was required to have regard to the section 1 principles, including the obligation in section 1(4) to choose the manner that involves the minimum restriction on the patient’s freedom that is necessary, and to comply with the Regulations’ conditions for use of such measures, notice and recording obligations. The Board had not done so in relation to the possession/search/confiscation measures and therefore those components were unlawful and should be annulled.
• The court held that a comprehensive smoking ban in the context of long-term therapeutic detention falls within the ambit of article 8 and interferes with private life because detained patients retain residual autonomy that must be justified when further restricted. The protection of health is a legitimate aim and the ban had a rational connection to that aim. On proportionality, having regard to the documented operational, security and health difficulties of a partial regime, the comprehensive ban itself would have been a proportionate measure. The unlawfulness was therefore confined to the possession/search/confiscation regime for failure to satisfy domestic statutory requirements; if re-introduced in compliance with the 2003 Act, such measures could meet ECHR requirements.
• The article 14 complaint failed: differences in treatment were explained by timing, institutional circumstances and the duty to provide a safe therapeutic environment.

Remedy and procedural point:

The Supreme Court proposed to invite written submissions on the form of order, but the substantive outcome was to allow the appeal in part and annul the unlawful possession/search/confiscation measures.

Appeal allowed in part. The court held that the Board’s management decision to make the hospital a smoke-free environment was an exercise of its management powers under the National Health Service (Scotland) Act 1978, but the accompanying prohibition on possession of tobacco products and the powers to search for and confiscate them fell within section 286 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and the 2005 Regulations. Because the Board did not apply the section 1 principles (in particular the obligation in section 1(4) to adopt the minimum restriction necessary) nor comply with the notification and recording requirements of the Regulations, those supporting measures were unlawful and were to be annulled; otherwise the comprehensive ban would have been a proportionate interference with article 8 and the article 14 claim failed.

First instance: judicial review before the Lord Ordinary (Lord Stewart) who declared the impugned decision unlawful (interlocutor dated 27 August 2013). Reclaiming motion allowed by the Second Division of the Inner House ([2014] CSIH 71) in favour of the Board. Appeal to the Supreme Court from [2014] CSIH 71.