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Introduction sarah-mckeeve1

This case concerns the lawfulness of a ban on smoking and tobacco in the buildings and grounds of the State Hospital, Carstairs, a high-secure hospital in central Scotland. Did the respondents’ smoking ban infringe the patient’s rights under arts 8 and 14 of the ECHR? Did the smoking ban need to comply, and did it comply, with the principles set out in the Mental Health Care (Care and Treatment) (Scotland) Act 2003, s 1?

Factual background

The appellant, Mr Charles McCann has been detained as a patient of the State Hospital, Carstairs since the mid-1990s.

In 2005 and 2006 Scotland introduced anti-smoking legislation in the form of the Smoking, Health and Social Care (Scotland) Act 2005 and the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006. The legislation banned smoking in public places and spaces, including inside psychiatric hospitals (other than in designated smoking rooms, a carve-out specific to such hospitals due to their residential nature).

After a series of consultations and after trials of partial bans, the respondents decided to implement a comprehensive smoking ban (removing the carve-out) at the State Hospital from 1 December 2011. Mr McCann raised an action for judicial review of that decision in May 2012.

Outer House

At first instance the Lord Ordinary:

  • repelled the respondents’ plea of mora, taciturnity and acquiescence, finding that there had been no delay in raising proceedings;
  • held that in addressing the issue of smoking the respondents were discharging a function by virtue of the 2003 Act;
  • found that the prohibition was unlawful because the respondents ought to have assessed the petitioner’s situation “individually” in light of the principles set out in section 1(3) and 1(4) of the 2003 Act (to have regard to a number of matters including the patient’s present and past wishes and the feelings of the patient which are relevant to the discharge of the function);
  • held that the respondents’ policy of a smoking ban and a prohibition of tobacco products breached the petitioner’s rights under Article 8 of the ECHR, in that it represented a disproportionate interference with the petitioner’s rights;
  • found that, applying the relevant comparator of an adult prisoner in mainstream prison, the policy also breached the petitioner’s rights under the ECHR, art 14; and
  • determined that his finding of breach of the petitioner’s rights was “just satisfaction” and rejected the petitioner’s claim for damages.

The respondents appealed to the Inner House and Mr McCann cross-appealed on the question of damages.

Inner House

The respondents advanced five grounds of appeal and Mr McCann cross-appealed in respect of his entitlement to damages for the breach of his Convention rights.

The Inner House confirmed that the respondents’ plea of mora, taciturnity and acquiescence had no merit but otherwise allowed the appeal.

The Lord Ordinary had erred in finding that the 2003 Act was the source of the respondents’ power to prohibit smoking. Rather, the decision was found to be one of management to be exercised under section 102 of the National Health Service (Scotland) Act 1978 and the actions of the respondents were not contrary to the national policy which they were implementing.

The court also upheld, by a majority of 2-1, the respondents’ appeal against the Lord Ordinary’s finding that Article 8 was not engaged. The majority found “that a comprehensive smoking ban does not, in such an institution, have a sufficiently adverse effect on a person’s physical or psychological integrity or his right to personal development as to merit protection”.

Given that Article 8 was not engaged art 14 fell out of consideration, as did the question of the petitioner’s cross-appeal for damages. However, had these issues required to be addressed the court advised that they (a) would have found that the Lord Ordinary’s use of prisons as a comparator was inappropriate – the relevant comparator for the purposes of Article 14 would have been other hospitals; and (b) that the Lord Ordinary was correct in finding that damages were not required to afford the petitioner just satisfaction.

Supreme Court appeal

The appellant has appealed to the Supreme Court on the questions of whether the smoking ban infringed his rights under arts 8 and 14 of the ECHR and whether the smoking ban needed to comply, and did comply, with the principles set out in the Mental Health (Care and Treatment) (Scotland) Act 2003, s 1, which include the patient’s wishes and feelings.

The appeal was heard on 11 October 2016. The decision is awaited.