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Limited success for state hospital smoker in Supreme Court appeal

11 April 2017

A limited victory has been won in the UK Supreme Court by the patient in the state hospital at Carstairs who challenged the comprehensive smoking ban introduced by the hospital board.

Five judges allowed an appeal by Charles McCann, who challenged the ban as contrary to the principles in the Mental Health (Care and Treatment) (Scotland) Act 2003 and in breach of the European Convention on Human Rights, but only to the extent of holding that the board had acted illegally in not considering a related ban on the possession of tobacco products against the principle of minimum necessary restriction on the freedom of the patient in s 1(4) of the 2003 Act.

Mr McCann had challenged the ban so far as extending to smoking in the hospital grounds and on home visits, and also the ban on possession along with powers of search and confiscation. Although the implementing regulations were made under s 286 of the 2003 Act, the board argued that it had acted solely under its power of management in s 102(4) of the National Health Service (Scotland) Act 1978, and was not required to comply with the 2003 Act s 1 principles.

Lord Hodge, with whom Lady Hale, Lord Mance, Lord Wilson and Lord Reed agreed, said the board was correct that the comprehensive ban, "viewed on its own", involved the exercise of a power of management under the 1978 Act; he was not persuaded that it fell within the scope of the 2003 Act. However, the supporting prohibition and power of search and confiscation fell within the scope of the 2003 Act and the regulations: the Act did cover some regulations of general application as well as the treatment of individual patients; and "the focus of [s 286] and the regulations made under it is on the regulation of activities which impinge on the autonomy of individuals".

He continued: "The devising of such policies and the carrying out of such measures have thus become functions under the 2003 Act. The principles in s 1 of that Act apply to such measures in so far as they are relevant." As the board had failed to consider the s 1(4) principle and to comply with the obligations in the regulations to inform and record, its decision was illegal to that extent and fell to be annulled.

On the human rights challenges, contrary to the decision of the majority of the Second Division, Mr McCann’s article 8 right to privacy had been infringed. Where therapeutic detention severely curtailed a detained patient’s private space, there was a need to protect this residual autonomy by requiring further intrusion into his private life to be justified. Further, the decision was not “in accordance with law” as the board failed to address the requirements of s 1(4) in relation to the part of the ban relating to the prohibition of possession, searches and confiscation of tobacco products. But for this illegality, the decision would not have been contrary to article 8. But the smoking ban pursued the legitimate aim of the protection of public health and was rationally connected to that aim, and faced with the difficulties of implementing a partial ban, the board did not act disproportionately in imposing the comprehensive smoking ban when it did.

A claim of discrimination contrary to article 14 also failed. Differences in treatment between patients in the state hospital and patients in other NHS facilities or prisoners were a matter of timing rather than policy, as the Scottish Government had committed to extending the ban. The earlier implementation of the comprehensive smoking ban in the state hospital was due to the difficulties faced there in operating the partial ban.

The judge also observed that If there was to be a comprehensive smoking ban, "it is likely that the managers of the board will need to prohibit the possession of tobacco products and also have powers to search for and confiscate such products".

Given Mr McCann's limited success in the appeal, parties have been invited to make submissions on the appropriate form of the court's order.

Click here to access the judgment.

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