OPINION OF LORD CARLOWAY, THE LORD JUSTICE CLERK IN THE RECLAIMING MOTION CHARLES MCCANN AGAINST THE STATE HOSPITAL BOARD FOR SCOTLAND [2014] ScotCS CSIH_71 (12 August 2014)

OPINION OF LORD CARLOWAY, THE LORD JUSTICE CLERK IN THE RECLAIMING MOTION CHARLES MCCANN AGAINST THE STATE HOSPITAL BOARD FOR SCOTLAND [2014] ScotCS CSIH_71 (12 August 2014)

The Board's decision to implement a comprehensive smoking ban was a management function under the NHS (Scotland) Act 1978, not a function under the 2003 Act; therefore, the Board was not required to apply the 2003 Act principles. The ban did not breach the petitioner's rights under Articles 8 and 14 ECHR, as the interference was lawful and proportionate, and there was no unjustified discrimination. The plea of mora, taciturnity and acquiescence was not established.

Citation
[2014] ScotCS CSIH_71
Parties
Petitioner/respondent: Charles McCann; Respondent/reclaimer: The State Hospitals Board for Scotland
Jurisdiction
Scotland
Judgment Date
12 August 2014
Procedural Posture
Judicial Review / Reclaiming Motion (appeal)
Outcome
appeal allowed; Lord Ordinary's decision reversed
Legal Topics
Hospital Management, Smoking Ban, Mental Health Detention, European Convention on Human Rights, Discrimination
Public Law Health Law Human Rights Law Hospital Management Smoking Ban Mental Health Detention European Convention on Human Rights Discrimination

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Parties

Charles McCann

Petitioner/respondent

The State Hospitals Board for Scotland

Respondent/reclaimer

Procedural Posture

Judicial Review / Reclaiming Motion (appeal)

Legal Issues

  1. 1 Whether the State Hospital Board's comprehensive smoking ban was lawful under the relevant statutes
  2. 2 Whether the ban breached the petitioner's rights under Articles 8 and 14 ECHR
  3. 3 Whether the Board was required to apply the principles of the Mental Health (Care and Treatment) (Scotland) Act 2003 when making management decisions affecting patients

Ratio Decidendi

The Board's decision to implement a comprehensive smoking ban was a management function under the NHS (Scotland) Act 1978, not a function under the 2003 Act; therefore, the Board was not required to apply the 2003 Act principles. The ban did not breach the petitioner's rights under Articles 8 and 14 ECHR, as the interference was lawful and proportionate, and there was no unjustified discrimination. The plea of mora, taciturnity and acquiescence was not established.

Court Disposition

appeal allowed; Lord Ordinary's decision reversed

Orders

  • The Board's comprehensive smoking ban is lawful
  • No damages awarded to petitioner