A recent decision of the Scottish court goes against the decision of the Court of Appeal in the recent “smoking cases” (N v Nottinghamshire Healthcare NHS Trust) where it was found that it was lawful for the trust to adopt a policy to protect patients from the self harm that could be caused by smoking.
In the case of Clifford Lyons it was argued by Carstairs (a Scottish high secure hospital) that its policy of preventing patients from buying unlimited quantities of takeaways, introducing financial incentives to buy healthier options in the hospital shop and preventing food parcels from being brought in by visitors was one that was welcomed by the majority of patients and was lawful for health reasons.
It was argued that the hospital had not consulted on the changes in policy adequately and that the changes amounted to a restriction on the patients’ Article 8 rights under the Human Rights Act (the right to respect for private life).
The judge found that the hospital had not consulted properly on the introduction of their policy and that alone would have been sufficient to strike down the policy. She also found that the restrictions on food that were introduced had not previously been thought to have been necessary and the Hospital had not shown that they were now necessary.
She went on to say that some restrictions on food and drink in secure hospitals are justifiable as part of the ordinary, necessary and reasonable requirements of detention and that interference with the rights of patients to choose what they eat and drink need to be justified. In this case, there was no sufficient justification.
Scottish case law is not binding on English courts and of course this case does not mean that hospitals should not be looking at the overall health of patients but it does demonstrate the importance of the need to consult.