Petition Of C M For Judicial Review And Answers For The State Hospitals Board For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Stewart |
| Neutral Citation | [2013] CSOH 143 |
| Date | 27 August 2013 |
| Court | Court of Session |
| Published date | 27 August 2013 |
| Docket Number | P1265/12 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 143 | |
| P1265/12 | OPINION OF LORD STEWART in the Petition of C M fPetitioner; for Judicial Review of a decision on 25 August 2011 by the State Hospitals Board for Scotland to ban smoking at the State Hospital and Answers for The State Hospitals Board for Scotland Respondents: ________________ |
Petitioner: Leighton; Drummond Miller LLP
Respondents: K Campbell QC; NHS Scotland Central Legal Office
27 August 2013
[1] The Mental Health (Care and Treatment) (Scotland) Act 2003 has posed a number of interpretative challenges for the courts [Scottish Ministers v Mental Health Tribunal for Scotland (MM) 2010 SC 56; Sherrit v NHS Greater Glasgow & Clyde Health Board 2011 SLT 480; DC Re Judicial Review 2012 SLT 521; RM v The Scottish Ministers (Scotland) [2012] UKSC 58 (28 November 2012)]. The issue that taxes me on this occasion is whether the 2003 Act empowers the managers of the State Hospital, Carstairs, to detain patients and to decide on the conditions of their detention. The State Hospital is of course a high security psychiatric hospital, the only one in Scotland. It serves Scotland and Northern Ireland. The question about the power of the hospital managers arises in connection with the complaint of a cigarette smoker who is detained indefinitely in the State Hospital. He is the petitioner; and he objects to the fact that the managers have decided to prohibit the possession of tobacco products and to prohibit smoking, not just inside the hospital but also in the hospital grounds to which the petitioner has the privilege of unescorted access during daylight hours. The hospital managers are the State Hospitals Board and they are the respondents to this petition.
[2] The decision to implement a comprehensive smoking ban was made by the respondents at their meeting of 25 August 2011. The ban took effect on 5 December 2011. The petitioner instructed solicitors on 8 March 2012. The solicitors intimated his claim on 3 May 2012. The solicitors then applied for legal aid to raise proceedings. Legal aid was granted, eventually, on 12 November 2012. The petitioner's application for judicial review of the smoking ban was presented on 30 November 2012 and first orders were granted on 5 December 2012. I heard submissions by counsel for the parties at a first hearing on 14 and 15 February 2013. Having made avizandum I have now decided that the petition should be granted in part.
The issues and the outcome: summary of the decision
[3] The petitioner asks the court to declare that the respondents' "policy of a complete smoking ban and prohibition of possession of tobacco products by patients at the State Hospital" is unlawful; and also to declare that the respondents' policy has breached the petitioner's human rights, specifically article 8 of the European Convention on Human Rights [ECHR] (right to respect for private life and home) as a stand‑alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination) and the first protocol, article 1 ECHR (right not to be deprived of property) as a stand-alone claim and in combination with article 14 ECHR (enjoyment of Convention rights without discrimination). The petitioner seeks to have the smoking ban and the prohibition on tobacco products set aside by reduction failing which by suspension. The petitioner also claims Convention damages for the breach of his rights in the sum of £3,000.
[4] The question of the lawfulness of the smoking ban turns, in the first place, on the source of the respondents' power to impose such a ban. Are they exercising a power in terms of the Mental Health (Care and Treatment) (Scotland) Act 2003? If the 2003 Act applies, the next question is whether the respondents have complied with the 2003 Act principles for decision‑making "in relation to" patients? In addition and in any event there is a question about the adequacy of the reasoning for the decision. The respondents say that the smoking ban is not a 2003 Act function and, if it is, that they have complied with 2003 Act principles. In any event the reasoning is adequate. The respondents also maintain that cigarette smoking in the State Mental Hospital is not an activity that attracts the protection of article 8 ECHR by itself or in combination with article 14 ECHR; and, if it does, the smoking ban is a necessary and proportionate response in pursuit of a legitimate health aim. The respondents simply deny any breach of the first protocol, article 1 ECHR. Before anything else the respondents maintain that the petitioner's claim is barred by delay, "mora, taciturnity and acquiescence" being the traditional formulation of the plea.
[5] I do not think that the mora plea is a good one and I have repelled it. Insofar as I have allowed the petitioner's application on the merits I have done so with a degree of reluctance. It is a perfectly reasonable proposition, given contemporary understanding about the effects of tobacco smoking, that patients in a hospital should not be permitted to smoke; and I have no cause to doubt that the respondents ― who have a difficult job to do on behalf of the wider community ― have throughout been acting in what they genuinely see as the best interests of their patients. I also want to make it clear that I am not endorsing the idea of a "human right to smoke". There is no "right to smoke" in a legal sense. The fundamental right in terms of this aspect of article 8 ECHR is to have your identity, how you choose to express it, and other personal, private and intimate choices, whatever they may be, respected, even if your choices are harmful to yourself, morally reprehensible or laughable. If you are an adult, the state cannot interfere with your choices in the private sphere except for weighty reasons to do with the protection of others and the good of the community as a whole [cf. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (24 July 2008); Mosley v United Kingdom application no 48009/08 [2011] ECHR 774 (10 May 2011)].
[6] I have decided that it would be incorrect to strike down the respondents' decision to go "comprehensive smoke‑free". It is enough to declare that the decision is unlawful etc so far as it affects the petitioner. I say this for three reasons. The first reason is the main plank of the petitioner's own case: the petitioner submits that the respondents ought to have assessed his situation individually and that his individual circumstances make it unlawful to ban him from smoking in the hospital grounds. Nothing that justifies the petitioner's position necessarily applies to patients without grounds access. Secondly, the so‑called "right to smoke", whatever its precise juristic character, is certainly not an absolute right: it is a right that can be waived. For all I know the vast majority of previously cigarette‑smoking patients are now happy non‑smokers who have waived their "right to smoke". Thirdly, I intend that nothing that I decide in this case should affect, one way or the other, the position in relation to patients who are admitted to the State Hospital in future and who may want to smoke there. The human rights issue is about the petitioner's human rights and no one else's. As for "just satisfaction" for the breach of the petitioner's human rights, I agree with senior counsel for the respondents that appropriate satisfaction is afforded by recognising the breach without awarding damages. In fairness it should be recorded that there are many non-smoking patients in the State Hospital and that strong anti-smoking views have been expressed.
[7] A problem for the petitioner is that the smoking ban was well on the way to becoming a fait accompli six years ago when the respondents decided on the plan for rebuilding the State Hospital: the plan made no provision for smoking rooms. The decision was made, it appears, in the knowledge that there would be issues about the practicability of patients smoking outside. As senior counsel for the respondents said, though perhaps not intending to pun, by October 2010 when the new buildings were nearing completion, the internal smoking ban was "set in stone". This opinion comments on that decision but does not examine its lawfulness.
The petitioner's circumstances
[8] I have not been told the petitioner's age. He suffers from schizophrenia. The petitioner was charged with a number of, apparently, relatively low‑grade disorder offences, breach of the peace, simple police assault, etc, on summary complaint. The sheriff made a mental health disposal which resulted in the petitioner being detained in the State Hospital. Had there been no mental health issue the petitioner might conceivably have been imprisoned. If imprisoned it is unlikely that he would have been incarcerated for more than a few months. The petitioner appeared before the sheriff in 1995 and he has now been detained for 18 years.
[9] If the petitioner were of sound mind or if his condition were of such a nature and degree that he could be treated in the community he would be able to smoke in his own home and in other places. If he were currently a patient in a medium secure unit he would be able to smoke. I was told that for part of his detention the petitioner had in fact been transferred to a medium secure unit and that, if his condition were to improve, he might be transferred there again. If the petitioner were an ambulant patient in a non‑psychiatric hospital he would be able to smoke in the grounds, at least for the time being. If he were a hospice resident or a care home resident he might well be able to smoke: at least he could choose an institution that would allow him to smoke. If he were a prisoner in prison he could smoke.
[10] Persons liable to be detained in the State Hospital include patients who have entered from the criminal justice system like the petitioner, subject to orders for compulsory treatment with...
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