McCann v The State Hospitals Board for Scotland (Scotland) [2017] UKSC 31

Mr McCann, a long-term detained patient at the State Hospital Carstairs, challenged a comprehensive smoking ban including its grounds. The Supreme Court held the prohibition on possession, search and confiscation of tobacco was unlawful for non-compliance with the Mental Health (Care and Treatment) (Scotland) Act 2003, but the smoking ban itself was justified.

Facts

The appellant, Mr McCann, suffers from a mental disorder and was detained without limit of time at the State Hospital at Carstairs from December 1995 until March 2014, when he was transferred to the Rowanbank Clinic. The State Hospitals Board for Scotland (“the Board”), which manages the State Hospital on behalf of the Scottish Ministers under section 102 of the National Health Service (Scotland) Act 1978, decided on 25 August 2011 to implement a comprehensive ban on smoking, which came into force on 5 December 2011.

Following redevelopment of the hospital buildings (2007-2011), no indoor smoking facilities were provided. After consultation exercises in 2011 (in which the majority of patients favoured a partial ban), the Board initially implemented a partial ban permitting smoking in designated outdoor areas. However, this was found in practice to be unworkable due to safety, security, operational and clinical difficulties, including “power smoking”, staff exposure to passive smoke, and patients congregating in breach of access rules. The Board accordingly moved to a comprehensive ban prohibiting smoking in the hospital, its grounds, and on home visits, and prohibiting possession of tobacco products, supported by powers of search and confiscation.

Mr McCann did not challenge the indoor ban but challenged the wider comprehensive ban by judicial review.

Issues

Three issues were raised:

• Whether the decision was ultra vires at common law for failing to adhere to the principles in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) and the Mental Health (Safety and Security) (Scotland) Regulations 2005 (“the 2005 Regulations”).
• Whether the decision unjustifiably interfered with Mr McCann’s right to respect for private life under article 8 ECHR.
• Whether the decision discriminated against him contrary to article 14 read with article 8, by comparison with prisoners, other hospital patients, or the public at large.

Arguments

Mr McCann argued that the Board had failed to apply the section 1 principles, particularly the obligation to adopt the least restrictive alternative, and had not complied with the procedural conditions in the 2005 Regulations. He contended that smoking formed part of his residual personal autonomy as a long-term detained patient and that the ban interfered with his article 8 rights. He further contended that he had been treated differently from comparators without justification.

The Board submitted that the impugned decision was taken solely under its management power under the 1978 Act, that the 2003 Act was concerned with the care and treatment of individual patients and not general management policies, that article 8 was not engaged by a smoking ban in a detention setting, and that, in any event, the ban was a proportionate response to the legitimate aim of protecting health.

Judgment

The 2003 Act challenge

Lord Hodge (with whom Lady Hale, Lord Mance, Lord Wilson and Lord Reed agreed) drew a distinction between the comprehensive smoking ban itself, which fell within the Board’s management powers under the 1978 Act, and the supporting prohibition on possession of tobacco products and powers of search and confiscation, which fell within the scope of section 286 of the 2003 Act and the 2005 Regulations. The Court rejected the submission that the 2003 Act was confined to individual treatment; Part 18 plainly contemplated general regulatory measures affecting detained patients’ autonomy. The focus of section 286 was on regulating activities impinging on individual autonomy, requiring transparency, notification, record-keeping, and supervision by the Mental Welfare Commission.

It followed that the principles in section 1 of the 2003 Act applied, including in particular the obligation under section 1(4) to discharge the function in a manner involving the minimum restriction on the freedom of the patient. The Board had not purported to act under the 2003 Act and had not addressed section 1(4) or complied with the informing and recording obligations in the 2005 Regulations. Accordingly, the prohibition on possession and the powers to search and confiscate were unlawful.

Article 8 ECHR

Lord Hodge departed from the majority of the Inner House and held that article 8 was engaged. He affirmed the principle that detained persons retain all civil rights and fundamental freedoms not expressly or impliedly removed by their detention (citing Raymond v Honey and Hirst v United Kingdom (No 2)). Where therapeutic detention severely curtails the private sphere, the limited residual areas of choice become all the more important and the court must protect what remains. By analogy with L v Board of State Hospital, where restrictions on food parcels engaged article 8, a comprehensive smoking ban likewise engaged article 8 and required justification. The Court did not find it necessary to decide whether the hospital was Mr McCann’s “home” for article 8 purposes.

On justification, the legitimate aim of protecting health was clear, and the rational connection was self-evident. As to proportionality, the Court accepted the documented operational difficulties with the partial ban (safety, security, staff exposure, fairness, and clinical disruption) and held the Board did not act disproportionately. However, because the supporting measures were not “in accordance with the law” under domestic law (failing to comply with the 2003 Act and the 2005 Regulations), the article 8(2) test of legality was not met.

Article 14 ECHR

The article 14 challenge failed. Differences with patients in other NHS facilities and prisoners were a matter of timing rather than policy, given the Scottish Government’s commitment to extending smoking bans across NHS facilities and prisons. Comparisons with the public at liberty were misplaced because such persons can smoke without exposing others to second-hand smoke in a secure environment, and the state owes no equivalent duty of care.

Implications

The decision establishes that the regulatory framework in Part 18 of the 2003 Act, and in particular section 286 and the 2005 Regulations, applies not only to measures targeted at individual patients but also to general management policies that restrict the autonomy of detained patients (such as prohibitions on possessing items, searches and confiscation). The section 1 principles – notably the least restrictive alternative obligation – must be applied where relevant, and the procedural safeguards on notification, recording and review must be complied with.

The judgment confirms the wider principle that compulsorily detained persons retain all rights not removed by the fact of lawful detention, and that, where therapeutic detention has already substantially eroded the private sphere, residual choices attract enhanced article 8 protection. This is significant for the management of high-security psychiatric facilities and, by extension, other forms of long-term detention.

Practically, the decision means that comprehensive smoking bans of this kind at state hospitals are not inherently incompatible with article 8 or article 14, and can be justified as proportionate measures to protect health. However, supporting enforcement measures must be implemented through the proper statutory route, which in Scotland requires compliance with the 2003 Act and 2005 Regulations. The Court left open the precise form of order, and observed that the article 14 question regarding mental health patients more broadly need not be definitively resolved.

The case is important for mental health law practitioners, NHS bodies, and policy-makers because it clarifies the relationship between general management powers under the 1978 Act and the patient-protection framework of the 2003 Act, and reinforces the requirement that restrictions on the autonomy of detained patients be founded on a clear and compliant legal basis.

Verdict: Appeal allowed in part. The prohibition on possession of tobacco products and the related powers of search and confiscation within the impugned decision were declared unlawful for failure to comply with the Mental Health (Care and Treatment) (Scotland) Act 2003 and the 2005 Regulations, and accordingly infringed Mr McCann’s article 8 rights for not being in accordance with the law. The appeal was otherwise dismissed; the comprehensive smoking ban itself was lawful and proportionate, and the article 14 challenge failed. The Court invited written submissions on the form of order.

Source: McCann v The State Hospitals Board for Scotland (Scotland) [2017] UKSC 31