The Supreme Court held that the State Hospital’s comprehensive smoking ban was an exercise of management powers, but the linked prohibition on possessing tobacco and the powers to search for and confiscate it had to be exercised under the Mental Health (Care and Treatment) (Scotland) Act 2003 and had not been. The ban interfered with a detained patient’s Article 8 right to respect for private life, although the Court considered that a properly authorised ban would have been a proportionate health measure. The Article 14 discrimination challenge failed.
Mr McCann was detained at the State Hospital at Carstairs when the Board decided to extend its indoor smoking ban to the grounds and to home visits. Under the policy, which took effect on 5 December 2011, patients could no longer possess tobacco products. Visitors could not bring them in, and staff could search for and confiscate them. Mr McCann challenged the extension and the measures used to enforce it. He accepted the indoor ban.
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The Board had consulted patients on a partial ban, limited to designated outdoor areas, or a comprehensive ban. Most responding patients preferred a partial ban, and the Board initially accepted that approach. Operational experience then revealed difficulties: higher-risk patients sought grounds access, staff faced passive smoking, patients congregated contrary to access rules, and the arrangements caused security, clinical and staffing problems. The Board concluded that the partial ban was unworkable and introduced the comprehensive ban, while continuing support for smoking cessation.
The statutory challenge
Mr McCann argued that the decision was ultra vires because the Board had not applied the principles in section 1 of the 2003 Act or the Mental Health (Safety and Security) (Scotland) Regulations 2005. Section 1 requires a person discharging a function under the Act to have regard to specified matters so far as relevant and then to choose the minimum restriction on the patient’s freedom necessary in the circumstances. The 2005 Regulations authorise restrictions on articles, searches and removal of prohibited articles, subject to conditions including risk assessment, information and record-keeping.
Lord Hodge, with whom the other Justices agreed, held that the smoking ban itself was an exercise of the Board’s hospital-management power under section 102 of the National Health Service (Scotland) Act 1978. The supporting prohibition on possession and the search and confiscation powers were different. Section 286 and the 2005 Regulations were not confined to individually targeted measures or to items such as weapons. They regulated interferences with detained patients’ autonomy and applied to general policies of this kind. The Board had not addressed the minimum-restriction obligation or the Regulations’ information and recording requirements. Those parts of the decision were therefore unlawful.
Article 8
The Court held that the comprehensive ban interfered with Mr McCann’s Article 8 right. Lawful therapeutic detention necessarily curtails private life, but restrictions that are not inherent in detention still require justification. Smoking in the limited space remaining to a long-term detained patient engaged the protection of personal autonomy, even though the Court did not need to decide whether the hospital was his home or whether a ban on people at liberty would do so.
The possession, search and confiscation measures were not “in accordance with the law” because they failed to comply with the 2003 Act and 2005 Regulations. The Court nevertheless considered the remaining justification tests because the domestic defect might be remedied. Protection of the health of patients and staff was a legitimate aim, and the ban was rationally connected to it. Given the documented problems with supervised outdoor smoking, a less intrusive partial ban would unacceptably have compromised that aim, and the comprehensive ban struck a fair balance. Had the supporting measures been introduced in accordance with the 2003 Act, the Code of Practice and the 2005 Regulations, the decision would not have breached Article 8.
Article 14
Mr McCann compared his position with that of prisoners, patients in other hospitals and people at liberty. The Scottish Government planned to extend smoking restrictions to prisons and other NHS facilities. The problems at Carstairs explained why its Board acted sooner. The comparison with people at liberty also failed. They had opportunities to smoke away from others, and the authorities did not owe them the same duties that the hospital owed its patients and staff.
Verdict: The Supreme Court unanimously allowed the appeal in part. The Board had acted unlawfully in prohibiting possession of tobacco and in authorising searches and confiscation. That failure to comply with domestic law also breached Article 8. The wider challenge to the smoking ban and the Article 14 claim failed. The Court invited written submissions on the form of its order within 21 days.
Source: McCann v The State Hospitals Board for Scotland [2017] UKSC 31
