Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 21
	OPINION OF LADY DORRIAN in Petition of CLIFFORD LYONS Petitioner; for Judicial Review of a decision of the board of the State Hospital Dated 29th October 2009 ­­­­­­­­­­­­­­­­­________________

Petitioner: Sutherland; Balfour + Manson

Respondent: Campbell; R F Macdonald

2 February 2011

Introduction

[1] The petitioner is a patient in the State Hospital. He is the subject of both a compulsion order and a restriction order. The respondent is the board of the State Hospital to whom the Secretary of State has delegated responsibility for the control and management of the hospital in terms of the National Health Service (Scotland) Act 1978. On 29 October 2009 the respondent decided that:

 Visitors to the hospital would no longer be allowed to bring food parcels for patients;

 Patients would no longer be allowed to order food from outside sources, although they would continue to be allowed to order one take away meal per month; and

 That a fiscal pricing policy would be introduced into the hospital shop, designed to make purchases of low fat and low sugar foodstuffs and drinks a more financially attractive option than the full fat, high sugar versions.

[2] Prior to this date visitors had been entitled to bring food parcels for patients. Subject to certain restrictions e.g. no glass or tin containers, patients had been entitled to procure food from outside sources under a policy known as external purchasing. Within the stocking policy of the shop, patients had been entitled to purchase what they wished from the shop. Although there is reference in the decision to bringing the State Hospital into line with other high security hospitals in the UK, and although at a meeting with patients and others on 9 December 2009 the issue of security was advanced by Dr Young as a reason for the decision having been made, the fundamental reason for recommending these changes related to the health of patients and issues with obesity. Issues of security were mentioned in passing but it is clear that these did not form the basis for either the recommendations or the decision which was ultimately made. This was accepted by counsel for the respondent.

[3] The petitioner seeks to reduce the board's decision on two grounds, namely that the respondents had failed to consult the patients as they were required to do in terms of the Mental Health (Care and Treatment) (Scotland) Act 2003 and that, the respondent being a public authority for the purposes of the Human Rights Act 1998, the decision constituted a breach of the petitioner's rights under Article 8 of the European Convention on Human Rights.

[4] At the hearing before me, it was explained on behalf of the respondent that the fiscal pricing policy was not to proceed. A misunderstanding relating to what could be ordered in a take away had been clarified at an earlier hearing. The two points which remained live issues were the banning of visitors food parcels and external purchasing.

[5] It was conceded that in making decisions about the management and welfare of patients, the respondent was under a duty to consult the patients as a result of the terms of Section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, and that the decision under challenge fell into that category. That section provides that whenever a person is exercising a function in relation to a patient over the age of 18 they must have regard to a number of factors which include the present and past wishes and feelings of the patient which are relevant to the discharge of the function and the range of options available in the patient's case. Equally it was not disputed that the test for what amounts to consultation was identified in the authorities relied upon by the petitioner, namely R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities 1986 1 WLR 1, R v London Borough of Barnet ex parte B 1994 ELR 357, R v North and East Devon Health Authority and North Devon Healthcare NHS Trust ex p Pow 1998 vol I CCLR 280, and R v North and East Devon Health Authority ex parte Coughlin 2001 QB 213.

[6] As Lord Woolf put it in Coughlin, p 258, under reference to R v Brent London Borough Council, Ex parte Gunning (1985) 84 LGR 168:

"To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken."

Reference was also made to R ex parte Wainwright v Richmond & Thames Borough Council 2001 EWCA Civ 2062 CA.

[7] In addition, it was also agreed that the State Hospital had to be seen as the petitioner's home for the purposes of Article 8 ECHR, albeit that the concept of "home" in such circumstances differed somewhat from the concept of a person's private home.

Submissions for petitioner

[8] Counsel for the petitioner submitted that prior to the decision there had not been appropriate consultation sufficient to meet the requirements of the test set out in the various authorities. The respondent had produced an e mail from the hospital's lead dietician dated 15 September 2009 (7/16) which referred to the response of 20 patients who had been spoken to on an individual basis about the nature of the items purchased by patients from the hospital shop and the reasons which they gave for these choices. Minutes of a meeting of Clyde Ward dated 28 May 2009 (7/18) raised the issue of what might be done to support patients to achieve a healthy lifestyle and the patients' comments were noted. Counsel submitted that there is no indication from these documents that patients had at the time any inkling of the issues which were in fact under consideration. No mention of these issues was made at a meeting of Tay ward on 27 August 2009 (7/19) or in the meeting of Clyde ward on 29 October 2009 (7/20). The Petitioner's position was that there had been no prior consultation. The respondent relied on notification at a single meeting (of the Patient Partnership Group) on 1 October 2009 at which for the first time patients were told there were to be changes to the availability of snacks and refreshments. This was attended by the lead dietician Frances Waddell, whose attendance was described as being to get patients views on "the paper for the board". That paper, being dated 29^th October could not have been available and there is no suggestion that any draft of it was placed before the meeting. The meeting was attended by only 12 patients. The exact nature of the proposals explained to the patients is unclear. The same applies to a meeting of Cromarty ward reported on in an e mail dated 3 October 2009 (7/17) in which patients' response to the proposals is recorded. However, there is no indication that patients in other wards were consulted. Having regard to the nature of the issues put to the board and the limited information given to patients in advance and the limited nature of the feedback obtained, the respondent could not properly be said to have consulted on the proposals.

[9] Counsel also referred to section 259 of the Mental Health (Care and Treatment) (Scotland) Act 2003 which provides that:

"(1) Every person with a mental disorder shall have a right of access to independent advocacy and accordingly it is the duty of each health board to secure the availability of such services."

[10] Subsection 4 defines advocacy services as services of support and representation made available for the purpose of enabling the person to whom they are available to have as much control of or capacity to influence that person's care and welfare as is in the circumstances appropriate. Counsel submitted that this meant that not only should such services be available it was the duty of the respondent to make sure that patients availed themselves of such services, especially when dealing with a patient group in which there might be issues of understanding and literacy.

[11] As to article 8 of the ECHR, this seeks to protect a number of different interests including those of private life and home. Under article 8(2), interference with these was subject to strict control requiring to be in accordance with the law and necessary in a democratic society for the purpose of certain specified interests which did not apply in the present case. The respondent may claim to have acted for the protection of health and morals but that exception did not entitle the board to act as they have done in the present case. That exception referred to action which was necessary for the protection of public health in general rather than individual decisions affecting a person's health. It can only relate to a given section of the community if there is an identifiable characteristic which needs to be protected, where, for example, a person would be a danger to himself in the community. Interference with the petitioner's right to choose what to eat and to restrict what has otherwise been generally available to him is an interference with respect to private life and with right to respect for his home. The authorities suggest that the scope of article 8 is very broad. In R (Wood) v Commissioner of Police of the Metropolis 2010 1 WLR 123 (CA) the court noted that "the content of the phrase private and family life is very broad indeed", and went on to state (para 20) that:

"The phrase physical and psychological integrity of a person (the Von Hannover case 40 EHRR 1, para 50; S v United Kingdom 48 EHRR 1169, para 66) is with respect helpful. So is the person's physical and social identity: S v United Kingdom, para 66 and other references there given). These expressions reflect what seems to me to be the central value protected by the right. I would describe it as the personal autonomy of every individual."

Paragraph 21 states:

"Applied to the myriad instances recognised in the article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual's personal autonomy makes him - should make him - master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the zone of interaction (the Von Hannover case 40 EHRR 1, para 50) between himself and others. He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the state shows an objective justification for doing so."

Although in that case the court was concentrating on issues of identity, that was understandable in the context of a case about the taking of photographs. The concept of personal autonomy was, however, wider than something which merely related to identity.

[12] Counsel also drew attention to paragraph 22 where it is observed that:

"This cluster of values, summarised as the personal autonomy of every individual and taking concrete form as a presumption against interference with the individual's liberty, is a defining characteristic of a free society. We therefore need to preserve it even in little cases."

[13] Counsel referred to Mentes v Turkey 1998 26 EHRR 595 for the proposition that the right to a home encompasses a place where a person happens to be living for a substantial period of time. The case of Salinen v Finland 2007 44 EHRR 18 also made the point that the concept of home can be broadly defined, deciding that a lawyer's office was included. In R (N) v Secretary of State for Health 2009 HRLR 31 which related to a smoking ban in Rampton, it was agreed that the hospital was "home" for the purpose of article 8. The court recognised that the hospital was the appellant's home but was not the same as a private home. It was a public institution, operated as a hospital under s 4 of the Health Act 2006, and supervision was intense for security reasons. The patient did not thereby lose all right to private life but the nature of that life and the activities which he may pursue were restricted by virtue of the nature of the institution and those in it. In that case the majority decided that smoking was not an activity within the right to respect for home or private life under article 8. Although they concluded that "There is no basis for distinguishing the loss of freedom to choose what one eats or drinks in such an institution and the ban on smoking", counsel suggested that this remark was made in the context of the general loss of freedom which life in such an institution entails, rather than the specific issue under consideration in the present case. The court was not in fact equiperating eating and drinking with smoking. Indeed at paragraph 42 in the opinion of the majority they note that:

"For example, what one eats or drinks may not be important, but that the state should dictate what a person eats or drinks in the privacy of a person's own home would be regarded as deeply intrusive."

[14] That suggests that in normal circumstances the right to make this choice would be one protected under article 8 and that interference with it must be justified. A general restriction of this type in an institution such as the State Hospital can readily be justified. The interference should only be to the extent necessary for the purpose protected by the reservation in article 8(2). It is clear that the restrictions which have now been introduced have never hitherto been regarded as necessary and the respondent has failed to show that they are necessary.

Submissions for respondent

[15] Counsel for the respondent began by identifying the nature of the State Hospital which is set out in section 102 of the National Health Service (Scotland) Act 1978 which provides:

"(1) The Secretary of State shall provide such hospitals as appear to him to be necessary for persons subject to detention under the Criminal Procedure (Scotland) Act 1995 (c.46) or the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) who require treatment under conditions of special security on account of their dangerous, violent or criminal propensities.

(2) Hospitals provided by the Secretary of State under subsection (1) are referred to in this Act as "state hospitals"."

[16] The issue of security brings with it certain consequences: there is considerable physical security; patients are subjected to a range of restrictions on what they can do. Some are obvious: they can't leave; some have more limited access to the grounds than others; and all have restrictions about when they have such access. There are prohibitions on access to certain foodstuffs e.g. alcohol and anything in a glass or tin container. Chewing gum is not allowed, to prevent manufacture of counterfeit keys. Access to phones may be restricted and mobile phones are not allowed. Such restrictions are all part of the essential environment of an institution such as the State Hospital. Counsel submitted that the decision made by the respondent was not in breach of the obligation to consult under section 1 of the 2003 Act. Moreover, article 8 was not in the circumstances engaged.

[17] Within the hospital the Patient Partnership Group (PPG) is the principal formal channel for communication. Although counsel submitted that it is in the nature of a body such as the state hospital that there will also be informal communication there were none that he could point to as specifically relating to the issues here. He relied principally upon the minute of the PPG meeting of 1 October, the notice of that meeting dated 24 September and the e mail of 3 October relating to a meeting of Cromarty ward. There is a weekly meeting of the PPG and patients are alerted to this and other activities by a regular news update. The notice of 24 September noted that on the agenda the following week would be a review of the Physical Health Steering Group recommendations, some of which were listed. These items taken together amounted to sufficient consultation. The degree of consultation required was determined by the nature of the project in hand. A project with wide implications for society as a whole will require far wider consultation than the installation of a local pedestrian crossing.

[18] As to article 8, counsel submitted that the case of R(Wood) v Commissioner for Police of the Metropolis was not authority for the development of a notion of personal autonomy beyond that which is related to personal identity and privacy. Counsel submitted that the right to chose what to eat and drink, and in what quantities, was not protected by article 8. Counsel referred to the case of R (Countryside Alliance and others) v Attorney General and another 2008 1 AC 719 as authority for the proposition that article 8 did not in any event protect everything which a person chose to do in his home. In the words of baroness Hale of Richmond, "Article 8 protects the private space, both physical and psychological, within which individuals can develop and relate to others around them. But that falls some way short of protecting everything they might want to do even in that private space; and it certainly does not protect things that they can only do by leaving it and engaging in a very public gathering and activity."

[19] Counsel submitted that the logic of R(N) applied equally to the present case. Article 8 was not engaged. However, if he was wrong about that his seconddary submission was that interference was justified in terms of article 8(2). He then made submissions on this point, which for reasons given below I do not propose to record in detail.

Discussion and decision

Consultation

[20] The board's decision followed its consideration of a paper from the Physical Health Steering Group dated 29 October 2009. The recommendations in that paper (6/5) were that restrictions should be placed on what visitors should be allowed to bring in and that there should also be restrictions on external purchasing. The recommendation that visitors should not be allowed to bring in food were only two of a range of options which were put forward. Other options included allowing visitors to make purchases from the hospital shop or from an approved list. There was in fact no recommendation that external procurement should cease altogether, the options all being related to the imposition of a limit on purchases rather than a ban.

[21] The paper noted that it was imperative to obtain patient feedback and gave what purports to be a summary of that feedback. It stated that the majority of patients felt supportive of fiscal pricing initiatives and would be happy with these. This issue is no longer a live one but it is worth noting that this summary is incorrect. As far as can be seen, patients did not support fiscal pricing. All that is stated under external purchasing is that "A general consensus regarding how this should be managed was not agreed". In fact, from such consultation as had taken place, it appears that patients were vehemently opposed to restrictions being placed on this. That fact was not reported in the paper and the views expressed by patients on the matter were not recorded and do not appear to have been provided to the board before the decision of 29 October. As to visitors, it is recorded that patients felt it important that visitors should continue to be able to bring in parcels, for a number of reasons. They also felt that as a minimum visitors should be allowed to bring in fresh fruit and diet drinks.

[22] Turning to what information had been given to patients before the decision it appears that 20 patients were spoken to individually by Frances Waddell, the lead dietician at the hospital, but it is clear that this concentrated on asking the patients why they buy and eat sweets and other unhealthy food. There is no indication that the patients were advised of the proposals which were being considered or asked to give their views on these. This document does not constitute consultation on the proposals.

[23] There was however, some discussion of the matter at a meeting of the PPG on 1 October 2009. In fact it was essentially this meeting which was relied on by the respondents as having constituted consultation. The Minutes of that meeting (7/15) record that Frances Waddell "was at today's meeting to get patients views on the paper for the board". She "provided an overview of the reason for today's meeting and how dietary intake links to weight management and further health complications such as diabetes." It is in my view important to note the terms in which the recommendations were discussed. Rather than set out the three options relating to visitors which were contained in the paper which eventually went to the board, the recommendation placed before this meeting was simply that visitors should not be allowed to bring food into the hospital, the reasons given being related to infection control and storage space. It will be seen that the meeting did not therefore have an opportunity to consider the actual proposals which were made to the board and that they were given as a rationale an explanation which played no part in the board's decision. It is not clear exactly what information was given at the meeting about external purchasing, but it does appear that the issues discussed related to limits on spending rather than an outright ban. Twelve patients attended this meeting. The notice of the meeting, dated 24 September, indicated that it would include a review of recommendations in relation to "stopping visitors bringing in food, controls on shop and outside purchase of foodstuffs". The only other effort at consultation appears to have been a meeting of Cromarty ward which is reported on in an e mail of 3 October 2009. Again the exact nature of the issues put to the meeting is not clear but from the responses it appears that as to the matter of food parcels it was a complete ban. What was put to the meeting regarding food purchasing cannot be determined.

[24] It is highly questionable whether even such feedback as was obtained was properly put before the board. There is no indication that the board saw the e mail of 3 October or the minutes of the meeting of 1 October. The summary of feedback contained in the paper of 29 October was incomplete and in some respects incorrect. In any event, such consultation as took place did not enable patients to consider and to comment on all three options eventually put to the board regarding visitors. As to purchasing, the option eventually selected by the board, an outright ban, does not seem to have been put before patients at all. In my view the respondent has failed to consult as required under the legislation and on that basis the decision of 29 October 2009 falls to be reduced. I should note that I do not consider that the respondent has failed in any respect under section 259: I do not accept that this section requires the respondent to go any further than they have done in securing the availability of advocacy services for patients.

[25] Article 8, I agree with the majority in R(N) that although Rampton was the appellant's home it was not and could not be treated as equivalent in all respects to a private home. It seems clear that when making the observation that it would be deeply intrusive for the state to dictate what a person should eat and drink in the privacy of his own home, they were contrasting this to the position within such an institution such as Rampton. I accept the proposition made in that case that the degree to which a person may expect freedom to do as he pleases and engage in personal and private activity will vary according to the nature of the accommodation in which he lives. In particular this will be the case for those incarcerated in a prison or detained within the confines of the State Hospital. I have more difficulty with the assertion that the restrictions imposed are "not simply because restrictions can be justified, but more fundamentally because of the nature of the institution in which he eats and drinks." It seems to me that the limitations do arise from the nature of the place, but only because they are justified in terms of article 8(2). The loss of control over those aspects of life which would otherwise be under a person's sole and direct control, the inability to pursue one's personal affairs or otherwise lead one's life exactly as one chooses, are all concomitants of the justifiable deprivation of liberty which follows on imprisonment or detention in the State Hospital. Restrictions which mean that main meals are in general restricted to those provided by the institution, that people can't make their own food, or bring in alcohol, and are refused access to items one might find in a normal home are all justifiable as part of the ordinary, necessary and reasonable requirements of detention. Interference is thus not arbitrary but justified. The approach of the majority in R(N) appears to me to come close to saying that the rights of a prisoner or the inmate of a high security hospital are limited merely and automatically as a result of their confinement, whereas the position ought to be that the prisoners retain their rights under article 8 , interference with which requires to be justified.

[26] The authorities show that the scope of art 8 is extremely wide. In Pretty the court considered that personal autonomy was an important principle underlying the interpretation of its guarantees. Central to that autonomy is the issue of choice. Para 62 records that:

"The Court would observe that the ability to conduct one's life in a manner of one's own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned.''

In R(N) the court agreed with that proposition, saying:

"We entirely accept that the principle of autonomy must include the right to act in a way that is or may be considered undesirable, foolish or irrational."

In the Countryside Alliance case, Lord Bingham of Cornhill, referring to art 8 said:

"But the purpose of the article is in my view clear. It is to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose. The extent to which a State can use compulsory powers or the criminal law to protect people from the consequences of their chosen lifestyle has long been a topic of moral and jurisprudential discussion, the fact that the interference is often viewed as trespassing on the private and personal sphere adding to the vigour of the debate. However, even where the conduct poses a danger to health, or arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the scope of Article 8(1) and requiring justification in terms of the second paragraph."

This case does not simply deal with a trivial aspect of everyday life. For inmates of the state hospital, the freedom to receive food parcels from visitors and to make purchases from an external source are some of the few areas in which they may exercise some sort of personal autonomy or choice. I have reached the conclusion that a person's right to choose what they eat and drink is a matter in respect of which article 8 is engaged. If that choice is interfered with, it must be justified. In respect of a prisoner or a person confined in a secure hospital, interference to a certain extent can readily be justified. The general restrictions which applied in the State Hospital prior to 29 October 2009 were quite rightly accepted by counsel as being justified. In my view the additional restrictions which the respondent seeks to impose must also be justified. The respondent does not seek to do so on the basis of security or for any other general operational reason. It is specifically not argued that this additional restriction is a necessary, ordinary and reasonable requirement of the petitioner's loss of liberty. The sole basis of justification is that it is in the general interest of the health of the patients. It may be that the restrictions can be justified by reference to the risk to health of a substantial percentage of the hospital's population, given the assertion that those suffering from schizophrenia (80% of the hospital population) are at an increased risk of cardiovascular disease and obesity and double the normal risk of developing diabetes. Arguments to that effect were indeed advanced before me. However, given the views I have expressed about the lack of consultation and the failure to take into account views of patients, and in the absence of reasons for selecting the most restrictive opinion in each case, I do not feel it appropriate to pass further comment on this matter in the state of information before me. I would however say that I do not accept the proposition made for the petitioner that for the health reservation under article 8 to arise the issue has to refer to public health in general. In my view it is perfectly capable of applying where one has identified one particular section of the community which requires protection. The promotion of the heath of patients by reference to dietary needs, especially patients likely to be in the State Hospital for a long period, may be a sufficiently important objective to justify interference with article 8 rights of patients. The possibility of an increase in obesity/diabetes in the context of a prison population or that of a secure hospital gives rise to operational considerations for the institution as a whole and the responsibility of the respondent for the care of those within the institution. These in turn are matters which bear on the effectiveness of the institution in meeting the ends it is created for. In the result I will sustain the petitioner's first plea in law under deletion of paragraphs (a) and (d) which relate to fiscal pricing and take aways, and I shall sustain the fifth plea in law, reducing the decision but under deletion of paragraph (a).