Issue 53 May 2011 - Current Awareness: Mental health

 

MENTAL HEALTH - Lyons v State Hospital Board for Scotland [2011] CSOH 21

L, a patient in the State hospital subject to compulsion and restriction orders sought judicial review of a decision of the Board of the State hospital. The Board decided that:

(1) visitors to the hospital would no longer be allowed to bring food parcels for patients;

(2) 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,

(3) 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.

L sought to reduce the decision on two grounds: (1) that the respondents had failed to consult patients as they were required to do in terms 5 of the Mental Health (Care and Treatment) (Scotland) Act 2003; and (2) the decision constituted a breach of the petitioner’s rights under art.8.

Held: petition granted and decision reduced.

(1) There had been inadequate consultation. The consultation 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, was not put before patients at all.

(2) 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 art.8. As for art.8 the Court agreed 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 was 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, the Court in R(N) was contrasting this to the position within an institution such as Rampton. The Court also accepted the point 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.

(3) The Court had more difficulty with the view in R(N) 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”. In the view of the Court the limitations do arise from the nature of the place, but only because they are justified in terms of art.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 cannot 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 was thus not arbitrary but justified.

(4) The approach of the majority in R(N) came 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 art.8, interference with which requires to be justified.

(5) Further, the authorities show that the scope of art.8 is extremely wide.

(6) This case did not simply deal with a trivial aspect of everyday life. The freedom to receive food parcels from visitors and to make purchases from an external source are some of the few areas in which patients may exercise some sort of personal autonomy or choice. The Court reached the conclusion that a person’s right to choose what they eat and drink is a matter in respect of which art.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 were justified.

(7) The additional restrictions which the Board sought to impose had also to be justified. The Board did seek to do so on the basis of security or for any other general operational reason. The sole 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 per cent of the hospital population) were at an increased risk of cardiovascular disease and obesity and double the normal risk of developing diabetes.

(8) However, given the decision 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, it was not necessary to decide the point.

(9) The Court did not accept the proposition that for the health reservation under art.8 to arise the issue has to refer to public health in general. It was capable of applying where one has identified one particular section of the community which requires protection. The promotion of the health 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 art.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 Board 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.

Comment: A very unusual case and an inventive use of art.8. Although the views expressed by Lady Dorrian on art.8 are strictly obiter they are nevertheless important as a statement of the breadth of art.8. She also makes it clear that the rather less searching approach for a justification for a restriction taken in R(N) should not be followed in Scotland.