New Judgment: McCann v The State Hospitals Board for Scotland  UKSC 31
11 Tuesday Apr 2017
On appeal from:  CSIH 71
This appeal considered whether the respondent’s smoking ban infringed the claimant’s rights under ECHR, arts 8 and 14, 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 Supreme Court unanimously allowed the appeal, though only to the extent that the part of the impugned decision, which relates to the prohibition from possession of tobacco products and the powers of search and confiscation, does not comply with the 2003 Act and Mental Health (Safety and Security) (Scotland) Regulations 2005. The Court held that, in instituting the comprehensive smoking ban, there was no consideration of the principle that there must only be the minimum restriction on the freedom of the patient that is necessary in the circumstances by the Board. Equally there was no compliance with the obligations to inform and record in the 2005 Regulations, and as such the prohibition on having tobacco products and the related powers to search and confiscate were held to be illegal, falling to be annulled. The Court held that the policy infringed the claimant’s ECHR, art 8 rights to privacy, but that this was not disproportionate and pursued a legitimate aim of protecting public health, and considered that the art 14 challenge failed as the differences in treatment between detained patients in the State Hospital and patients in other NHS facilities or prisoners were a matter of timing rather than policy.