Clifford Lyons For Judicial Of A Decision Of The State Hospital
| Jurisdiction | Scotland |
| Judge | Lady Dorrian |
| Judgment Date | 02 February 2011 |
| Neutral Citation | [2011] CSOH 21 |
| Court | Court of Session |
| Published date | 02 February 2011 |
| Date | 02 February 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 21 | |
| OPINION OF LADY DORRIAN in Petition of CLIFFORD LYONS Petitioner; for Judicial Review of a decision of the board of the State Hospital Dated 29th October 2009 ________________ |
Petitioner: Sutherland; Balfour + Manson
Respondent: Campbell; R F Macdonald
2 February 2011
Introduction
[1] The petitioner is a patient in the State Hospital. He is the subject of both a compulsion order and a restriction order. The respondent is the board of the State Hospital to whom the Secretary of State has delegated responsibility for the control and management of the hospital in terms of the National Health Service (Scotland) Act 1978. On 29 October 2009 the respondent decided that:
Visitors to the hospital would no longer be allowed to bring food parcels for patients;
Patients would no longer be allowed to order food from outside sources, although they would continue to be allowed to order one take away meal per month; and
That a fiscal pricing policy would be introduced into the hospital shop, designed to make purchases of low fat and low sugar foodstuffs and drinks a more financially attractive option than the full fat, high sugar versions.
[2] Prior to this date visitors had been entitled to bring food parcels for patients. Subject to certain restrictions e.g. no glass or tin containers, patients had been entitled to procure food from outside sources under a policy known as external purchasing. Within the stocking policy of the shop, patients had been entitled to purchase what they wished from the shop. Although there is reference in the decision to bringing the State Hospital into line with other high security hospitals in the UK, and although at a meeting with patients and others on 9 December 2009 the issue of security was advanced by Dr Young as a reason for the decision having been made, the fundamental reason for recommending these changes related to the health of patients and issues with obesity. Issues of security were mentioned in passing but it is clear that these did not form the basis for either the recommendations or the decision which was ultimately made. This was accepted by counsel for the respondent.
[3] The petitioner seeks to reduce the board's decision on two grounds, namely that the respondents had failed to consult the patients as they were required to do in terms of the Mental Health (Care and Treatment) (Scotland) Act 2003 and that, the respondent being a public authority for the purposes of the Human Rights Act 1998, the decision constituted a breach of the petitioner's rights under Article 8 of the European Convention on Human Rights.
[4] At the hearing before me, it was explained on behalf of the respondent that the fiscal pricing policy was not to proceed. A misunderstanding relating to what could be ordered in a take away had been clarified at an earlier hearing. The two points which remained live issues were the banning of visitors food parcels and external purchasing.
[5] It was conceded that in making decisions about the management and welfare of patients, the respondent was under a duty to consult the patients as a result of the terms of Section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, and that the decision under challenge fell into that category. That section provides that whenever a person is exercising a function in relation to a patient over the age of 18 they must have regard to a number of factors which include the present and past wishes and feelings of the patient which are relevant to the discharge of the function and the range of options available in the patient's case. Equally it was not disputed that the test for what amounts to consultation was identified in the authorities relied upon by the petitioner, namely R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities 1986 1 WLR 1, R v London Borough of Barnet ex parte B 1994 ELR 357, R v North and East Devon Health Authority and North Devon Healthcare NHS Trust ex p Pow 1998 vol I CCLR 280, and R v North and East Devon Health Authority ex parte Coughlin 2001 QB 213.
[6] As Lord Woolf put it in Coughlin, p 258, under reference to R v Brent London Borough Council, Ex parte Gunning (1985) 84 LGR 168:
"To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken."
Reference was also made to R ex parte Wainwright v Richmond & Thames Borough Council 2001 EWCA Civ 2062 CA.
[7] In addition, it was also agreed that the State Hospital had to be seen as the petitioner's home for the purposes of Article 8 ECHR, albeit that the concept of "home" in such circumstances differed somewhat from the concept of a person's private home.
Submissions for petitioner
[8] Counsel for the petitioner submitted that prior to the decision there had not been appropriate consultation sufficient to meet the requirements of the test set out in the various authorities. The respondent had produced an e mail from the hospital's lead dietician dated 15 September 2009 (7/16) which referred to the response of 20 patients who had been spoken to on an individual basis about the nature of the items purchased by patients from the hospital shop and the reasons which they gave for these choices. Minutes of a meeting of Clyde Ward dated 28 May 2009 (7/18) raised the issue of what might be done to support patients to achieve a healthy lifestyle and the patients' comments were noted. Counsel submitted that there is no indication from these documents that patients had at the time any inkling of the issues which were in fact under consideration. No mention of these issues was made at a meeting of Tay ward on 27 August 2009 (7/19) or in the meeting of Clyde ward on 29 October 2009 (7/20). The Petitioner's position was that there had been no prior consultation. The respondent relied on notification at a single meeting (of the Patient Partnership Group) on 1 October 2009 at which for the first time patients were told there were to be changes to the availability of snacks and refreshments. This was attended by the lead dietician Frances Waddell, whose attendance was described as being to get patients views on "the paper for the board". That paper, being dated 29th October could not have been available and there is no suggestion that any draft of it was placed before the meeting. The meeting was attended by only 12 patients. The exact nature of the proposals explained to the patients is unclear. The same applies to a meeting of Cromarty ward reported on in an e mail dated 3 October 2009 (7/17) in which patients' response to the proposals is recorded. However, there is no indication that patients in other wards were consulted. Having regard to the nature of the issues put to the board and the limited information given to patients in advance and the limited nature of the feedback obtained, the respondent could not properly be said to have consulted on the proposals.
[9] Counsel also referred to section 259 of the Mental Health (Care and Treatment) (Scotland) Act 2003 which provides that:
"(1) Every person with a mental disorder shall have a right of access to independent advocacy and accordingly it is the duty of each health board to secure the availability of such services."
[10] Subsection 4 defines advocacy services as services of support and representation made available for the purpose of enabling the person to whom they are available to have as much control of or capacity to influence that person's care and welfare as is in the circumstances appropriate. Counsel submitted that this meant that not only should such services be available it was the duty of the respondent to make sure that patients availed themselves of such services, especially when dealing with a patient group in which there might be issues of understanding and literacy.
[11] As to article 8 of the ECHR, this seeks to protect a number of different interests including those of private life and home. Under article 8(2), interference with these was subject to strict control requiring to be in accordance with the law and necessary in a democratic society for the purpose of certain specified interests which did not apply in the present case. The respondent may claim to have acted for the protection of health and morals but that exception did not entitle the board to act as they have done in the present case. That exception referred to action which was necessary for the protection of public health in general rather than individual decisions affecting a person's health. It can only relate to a given section of the community if there is an identifiable characteristic which needs to be protected, where, for example, a person would be a danger to himself in the community. Interference with the petitioner's right to choose what to eat and to restrict what has otherwise been generally available to him is an interference with respect to private life and with right to respect for his home. The authorities suggest that the scope of article 8 is very broad. In R (Wood) v Commissioner of Police of the Metropolis 2010 1 WLR 123 (CA) the court noted that "the content of the phrase private and family life is very broad indeed", and went on to state (para 20) that:
"The phrase physical and psychological integrity of a person (the Von Hannover case 40 EHRR 1, para 50; S v United Kingdom 48 EHRR 1169, para 66) is with respect helpful. So is the person's physical and social identity: S v United Kingdom, para 66 and other references there given). These expressions reflect what seems to me to be the central value protected by the right. I would describe it...
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