Reclaiming Motion Charles Mccann Against The State Hospital Board For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Brodie,Lady Paton |
| Neutral Citation | [2014] CSIH 71 |
| Date | 12 August 2014 |
| Docket Number | P1265/12 |
| Court | Court of Session |
| Published date | 12 August 2014 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2014] CSIH 71
P1265/12
Lord Justice Clerk
Lady Paton
Lord Brodie
OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK
in the reclaiming motion
CHARLES McCANN
Petitioner and Respondent;
against
THE STATE HOSPITALS BOARD FOR SCOTLAND
Respondents and Reclaimers:
Act: Leighton; Drummond Miller LLP
Alt: K Campbell QC; NHS Scotland Central Legal Office
12 August 2014
Introduction
[1] The issue that arises in this reclaiming motion (appeal) is the lawfulness of a decision by the respondents on 25 August 2011 to prohibit smoking and the possession of tobacco in the buildings and grounds of the State Hospital, Carstairs. On 27 August 2013, in proceedings for judicial review, the Lord Ordinary held ([2013] CSOH 143) that the respondents’ decision was unlawful, although only insofar as it affected the petitioner, on the basis that it had not been taken in accordance with the principles set out in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act principles). He also held that it breached the petitioner’s rights under Articles 8 (respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights. The petitioner was not awarded damages. The finding of the breach was regarded as “just satisfaction” (Article 41). This reclaiming motion challenges the Lord Ordinary’s decision on the basis that the 2003 Act principles did not apply to the decision and that the petitioner’s Article 8 rights were not engaged by the decision or, if they were, that the decision was a proportionate one.
The Statutory Framework
[2] Section 57A of the Criminal Procedure (Scotland) Act 1995 empowers a criminal court to make a “compulsion order” authorising the detention of certain persons in a specified hospital (see s 57A(8)(a)). Section 59 authorises the court to “make a restriction order in respect of that person”, whereby he becomes “subject to special restrictions set out in Part 10 [of the 2003 Act] without limit of time”. The 2003 Act regime involves a regular review of the necessity for the orders by the patient’s responsible medical officer. The responsible medical officer may recommend to the Scottish Ministers that the orders be revoked and that issue may in turn be referred to a Mental Health Tribunal. The patient himself may make an application to the Tribunal to revoke the orders. As long as they remain in force, however, the continued detention of the patient in hospital will remain duly authorised.
[3] The obligation to provide hospitals, which are required for persons subject to orders from the criminal courts, is contained in an amended version of section 102 of the National Health Service (Scotland) Act 1978 and rests upon the Scottish Ministers. The State Hospitals are “under the control and management” (s 102(3)) of the Ministers, although the Ministers can delegate the management to a Special Health Board. That is what was done by the State Hospitals Board for Scotland Order 1995, which provides that the newly constituted Board of that name (the respondents) “shall exercise the … functions” of the Ministers in relation to the State Hospital; specifically the function of management (para 4(1)(a)).
[4] The 2003 Act is an extremely detailed piece of legislation, which followed upon certain recommendations in the Millan Committee Report: New Directions … on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/56). As its title suggests, the Act is generally about the “Care and Treatment” of those in the mental health regime, including those subject to compulsion and restriction orders. The remit of the Committee was to review the operation of the 1984 Act, having particular regard to, amongst other things, “the definition of mental disorder; the criteria and procedures for detention in and discharge from hospital; leave of absence and care outwith hospital; …”.
[5] The most significant principle emerging from the Report was that of the “least restrictive alternative” whereby “compulsion” ought to be “kept to a minimum” for the 10% or so of mental health patients for whom compulsion was necessary. The report reads (Introduction, para 4) as follows:
“… any use of compulsion under mental health law represents a significant curtailment of the human rights of the patient, and should only be permitted when, and to the extent that, it is absolutely necessary. … our recommendations seek to ensure that any compulsory intervention is tailored to the particular needs and circumstances of the individual. This is a fundamental change from the current legislation where the powers granted on detention are always the same, regardless of the circumstances.”
The proposals which then followed involved detailed alternatives to the existing criteria for compulsory measures, the creation of Mental Health Tribunals to deal with mental health issues and the introduction of a system of appeals against such measures. The Committee expressly considered (chapter 33) the European Convention, but primarily in the context of Article 5 (right to liberty), although there was also express mention of the control of correspondence (Article 8).
[6] The 2003 Act commences with an introductory part whereby the Act is to apply (s 1(1)) to a person “discharging a function by virtue of this Act”. There is no statement of what functions are actually covered by the Act but, critically for the arguments in this petition, the person discharging a function must (s 1(2)) have regard to a number of factors, not least the views of the patient and all those involved in his care. He must (s 1(4)) thereafter discharge the function “in the manner that … involves the minimum restriction on the freedom of the patient that is necessary in the circumstances”. The Act proceeds to deal in detail with compulsory measures of treatment in one form or another and the review of such orders. There are specific provisions in relation to compulsion and restriction orders.
[7] Section 286 of the 2003 Act, whose heading is “Safety and security in hospitals”, permits the making of regulations by the Scottish Ministers authorising restrictions on “the kinds of things” which detained persons may have with them. The Mental Health (Safety and Security) (Scotland) Regulations 2005 authorise measures, including the searching of patients and the taking of swabs from them. They also permit measures relating to the search and surveillance of visitors. The authorisations appear to relate to measures which otherwise would, or at least could, be regarded as unlawful. However, for present purposes it is of some note to observe that regulation 4(c) does authorise restricting the “kinds of things” which patients may have with them (reg 5) when failure to do so would pose a significant risk to the health, safety or welfare of any person in the hospital or the security or good order of the hospital. The respondents have prohibited tobacco in the hospital but there is no suggestion that, in doing so, these regulations were invoked.
Government Policy
[8] Smoke-free Scotland: Guidance on smoking policies for the NHS, local authorities and care service providers (Scottish Executive and Convention of Scottish Local Authorities, December 2005) recorded the commencement of the legislation (Smoking, Health and Social Care (Scotland) Act 2005 and the Prohibition of Smoking in Certain Premises (Regulations) 2006) to remove second-hand smoke from most public places and workplaces and mentioned the health benefits sought to be gained as a result. It continued, in the Executive Summary:
“Those working in the NHS, local authorities and other care service providers are invited, where possible, to go further than the legislation, working towards comprehensive smoke-free policies with the provision of cessation advice and support to those who wish to quit smoking”.
It emphasised that there was no requirement to provide outdoor smoking. Specifically in relation to working outdoors, the Guidance asked employers to consider whether there ought to be different rules for those working indoors and outdoors. It suggested that good practice required a comprehensive, equitable approach. Section 4 was headed “Going Forward – The case for completely smoke-free” and advised that “wherever possible, consideration should be given to going beyond the legal requirements and moving towards the goal of being completely smoke-free”. This section was not just about second-hand smoke but the benefits of stopping people (albeit particularly employees) smoking and of becoming a “smoke-free organisation”. There is a particular section which dealt with “in patients” where it is said that “Patients being admitted for elective procedures should be advised that the hospital operates a smoke-free policy…”.
[9] Some years later, the NHS produced: “Smoke-free mental health services in Scotland: Implementation Guidance (2011)”. This was produced in the context of the legislation (2006 Regulations, Sch 1, para 16; Sch 2, para 4) which permitted designated smoking rooms in mental health facilities. It stated, in a foreword by the Minister for Public Health and Sport:
“This … Implementation Guidance is a further step in the journey towards a smoke-free Scotland. Allowing smoking in designated rooms in residential mental health services, when it is completely banned in all other NHS settings, perpetuates inequalities...”.
It referred back to an earlier statement by the Public Health Minister in 2010, following a public consultation, that guidance would be produced to help mental health service providers move towards “banning smoking altogether”. It did note that, at that time, smokers retained a choice to smoke in hospital grounds. It also stated “Facts about smoking and mental health” to the effect that smoking has an adverse effect on mental health, especially schizophrenia. It distinguished...
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