McCann (Appellant) v The State Hospitals Board for Scotland (Respondent)

Описание: [2017] UKSC 31

UKSC 2015/0135
McCann (Appellant) v The State Hospitals Board for Scotland (Respondent)
On appeal from the Inner House of the Court of Session

The appellant sufferers from a mental disorder. In December 1995 after being charged with low grade offences he was detained in the State Hospital pursuant to orders under the Criminal Procedure (Scotland) Act 1975. Throughout his detention the appellant consistently desired to smoke and did so when able. However, on 25 August 2011, after a series of consultations, the respondent decided to implement a comprehensive smoking ban at the State Hospital commencing on 1 December 2011. The issues in this case are whether the respondent's smoking ban infringed the appellant's rights under Article 8 (right to a private life) and Article 14 (enjoyment of rights without discrimination) of the ECHR. Additionally whether the smoking ban needed to comply, and did comply, with the principles set out in s.1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which include the patient's wishes and feelings.
The Supreme Court unanimously allows Mr McCann’s appeal but 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 2005 Regulations.