McCann v The State Hospitals Board for Scotland

Heard on 11 October 2016

(with whom Lady Hale, Lord Mance, Lord Wilson and Lord Reed agree)

This is a challenge by application for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board for Scotland ("the Board") adopted by a decision taken at a meeting on 25 August 2011 and implemented on 5 December 2011. The appellant, Mr McCann, does not challenge the ban on smoking indoors. His challenge relates only to the ban on smoking in the grounds of the State Hospital and on home visits, which, by creating a comprehensive ban, prevents detained patients from smoking anywhere.

Mr McCann suffers from a mental disorder. After committing a number of offences which were prosecuted on summary complaint, he was detained without limit of time in the State Hospital under orders made originally under the Criminal Procedure (Scotland) Act 1975 (and more recently under the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act")) in December 1995. He remained in detention in the State Hospital until March 2014. He was then transferred to a medium secure unit in Glasgow, called the Rowanbank Clinic, where he remains in the care of NHS Greater Glasgow ("NHSGG"). NHSGG has decided to introduce a comprehensive smoking ban at the Rowanbank Clinic. Mr McCann has challenged that decision in separate proceedings for judicial review but his application remains sisted (stayed), pending the outcome of this appeal.

Mr McCann raises three principal issues in his challenge. First, he argues that the impugned decision is invalid at common law on the ground of ultra vires because, when so deciding, it did not adhere to the principles laid down in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act") (which I set out in para 22 below) or comply with the requirements of subordinate legislation made under the 2003 Act. Secondly, he submits that the impugned decision was unlawful because it unjustifiably interfered with his private life and thereby infringed his right to respect for his private life under article 8 of the European Convention on Human Rights and Fundamental Freedoms ("ECHR"). Thirdly, founding on article 14 of ECHR in combination with article 8, he argues that the Board, by implementing the comprehensive smoking ban, has treated him in a discriminatory manner which cannot be objectively justified when compared with (i) people detained in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public who remain at liberty.

After setting out the factual background and the relevant legislation and summarising the proceedings in the courts below, I will address each challenge in turn.

For many years public authorities in Scotland and elsewhere in the United Kingdom have sought to discourage smoking because of concerns about its effects on the health of the smokers and of those exposed to second-hand smoke, by so-called "passive smoking". Section 4 of the Smoking, Health and Social Care (Scotland) Act 2005 empowered the Scottish Ministers to make regulations prescribing classes of premises in which smoking would be prohibited and also the premises to be excluded from that ban. Among the premises which the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 ( SSI 2006/90) prescribed as no smoking premises were hospitals, hospices, psychiatric hospitals, psychiatric units and healthcare premises. Open areas, such as hospital grounds, were not so specified. Among the premises exempted from the smoking ban were designated rooms in psychiatric hospitals and psychiatric units.

Over time, public authorities have sought to extend the smoking ban. Between 2007 and 2011 the buildings at the State Hospital were redeveloped and modernised. The business case for the redevelopment, which the Scottish Government approved, proposed that the State Hospital would be a smoke-free environment and that there would be no provision for smoking either indoors or in the gardens and grounds. In accordance with that policy, the new buildings contain no indoor smoking rooms or facilities which would allow patients to take advantage of the exemption in the Regulations. The Board then had to consider whether, and if so for how long, it would continue to allow smoking in the grounds of the State Hospital.

The process by which the Board came to take the impugned decision is set out in a document published by NHS Scotland in February 2012 called " Working towards a smoke-free environment: an account of the journey undertaken at the State Hospital". Mr McCann founded on this document in his written pleadings (statement 5) as the factual background to the impugned decision. In summary, on 28 October 2010 the Board considered a report by its medical director and resolved to work towards a comprehensive smoking ban with effect from May 2011. After the judgment of the Court of Session in L v Board of State Hospital 2011 SLT 233, in which Lady Dorrian held that the Board had failed to consult with patients (as it had conceded it was required to do by section 1 of the 2003 Act) on its decision to ban visitors from bringing food parcels into the State Hospital and to ban patients from ordering in food, the Board reconsidered its policy concerning smoking at a meeting on 17 February 2011. It agreed to allow smoking to continue in the existing smoking rooms and to conduct a consultation on the options of a partial or comprehensive smoking ban.

The Board conducted the consultation between 1 March and 31 May 2011. It presented two options: a partial ban which permitted smoking only in designated open air areas within the grounds or a complete ban both internally and within the grounds. 86% of the patients who responded favoured the partial ban. The Board met again on 23 June to consider a report on the consultation which recommended that smoking be permitted in designated external areas in the grounds. The Board accepted that proposal subject to further consideration of how the partial ban would work in practice. The Board also confirmed its commitment to working towards a smoke-free hospital. At a further meeting on 5 July 2011 the Board confirmed that position. Because the patients were soon to move to the new building, the Board decided to close the smoking rooms in the existing buildings and to prohibit smoking in the ward gardens as from 1 August 2011, leaving only the designated external areas for smoking. The Board agreed to review its decision in November 2011.

The Board conducted a further consultation in mid-August 2011 in which it asked for responses to the same options of a partial ban or a comprehensive ban. 64% of patients favoured a partial ban and 36% a comprehensive ban. The Board's chief executive prepared a report on the operation of the partial ban which the Board considered at a meeting on 25 August 2011. At that meeting the Board made the impugned decision to implement a comprehensive smoking ban in December 2011.

The patients moved into the new buildings on 21 September 2011. On 5 December 2011 the comprehensive smoking ban came into force.

In his petition for judicial review Mr McCann initially called for the Board to produce the minute of the meeting of 25 August 2011 in order to disclose the reasons for the impugned decision. After the minute was produced, he founded on it to challenge the impugned decision for its failure to apply the principles set out in section 1 of the 2003 Act.

The minute of the meeting of the Board on 25 August 2011 recorded the reasons for the decision in these terms:

"[The Board's Chief Executive] outlined the activity following the Board's decision and the considerable problems experienced in operationalising the process, eg increasing numbers of higher risk patients had been referred for consideration of grounds access. The Senior Team had discussed a draft operational policy at their meeting on 27 July 2011 and agreed that from a practical point of view, patients would be permitted to smoke in existing ward gardens at eight set points during each day. The clinical team would agree the set points during each day.

Members were asked to consider:

(i) The feedback received over the first month of the restrictions on the appendix received

(ii) To allow smoking to continue in the grounds, with further limitations, until 30 November 2011

(iii) A full non-smoking environment as of 1 December 2011

Members noted that the decision taken in June 2011 was to be reviewed in November 2011. The documented feedback which had been received over the course of August 2011 from staff, as well as smoking and non smoking patients was reviewed. The discussion that followed centred around the difficulties encountered with the partial cessation of smoking at the Hospital in relation to issues of safety and security, operational and clinical disruption, time demands on staff, fairness of the partial restrictions, and the inconsistencies around the set points in the day when smoking was permitted. …

In light of the difficulties discussed and the importance of the operational management's view, Members agreed that the partial cessation of smoking at the Hospital had proved to be unworkable despite the best efforts of staff involved. It was agreed that the State Hospital would be a full non-smoking environment...