TOBACCO CONTROL LAWS

Charles McCann v. State Hospital Board of Scotland

The Hospital Board decided to prohibit smoking and the possession of tobacco on the ground of a government-run hospital.  The lower court ruled that the decision was unlawful in regards to the plaintiff, because it violated his right to private and family life, discriminated against him, and did not conform with the principles of the Mental Health Care Act. In this decision, the appeals court reversed the lower court judgment. The appeals court ruled that the hospital had the authority to prohibit smoking, and the decision did not violate the provisions of the European Convention on Human Rights. 

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Charles McCann v. The State Hospitals Board for Scotland, [2014] CSIH 71, Second Division, Inner House, Court of Session (12 August 2014)

  • United Kingdom
  • Aug 12, 2014
  • Second Division, Inner House, Court of Session

Parties

Plaintiff Charles McCann

Defendant The State Hospitals Board for Scotland

Legislation Cited

Mental Health (Care and Treatment) (Scotland) Act 2003

Prohibition of Smoking in Certain Premises (Regulations) 2006

Smoking, Health and Social Care (Scotland) Act 2005

International/Regional Instruments Cited

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Smoke Free Measures
Measures to reduce or eliminate exposure to tobacco smoke. (See FCTC Art. 8)

Substantive Issues

Right to Equal Protection
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
"Right to Smoke"
The tobacco companies and some individual plaintiffs argue that there is a right to smoke.
Right to Privacy
This is the right to a private personal and family life without intrusion from the government.

Type of Tobacco Product

None

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