BEGGS AGAINST THE SCOTTISH MINISTERS [2018] ScotCS CSOH_110 (27 November 2018)

BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BEGGS AGAINST THE SCOTTISH MINISTERS [2018] ScotCS CSOH_110 (27 November 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_110.html
Cite as: [2018] CSOH 110, 2018 GWD 39-476, [2018] ScotCS CSOH_110

[New search] [Context] [View without highlighting] [Printable PDF version] [Help]


Page 1 ⇓
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 110
P1235/17
OPINION OF LORD ERICHT
In the petition
WILLIAM BEGGS
against
THE SCOTTISH MINISTERS
Petitioner
Respondents
Petitioner: KJ Campbell QC; Drummond Miller LLP
Respondents: Byrne; SGLD
27 November 2017
Introduction
[1]       The petitioner is a prisoner in HM Prison, Edinburgh. The petitioner has concerns
about the way in which his correspondence is dealt with by the Scottish Prison Service (SPS).
He has previously brought judicial review proceedings in relation to various aspects of his
correspondence. He has been successful in a number of applications, including Beggs v
Scottish Ministers [2015] CSOH 98. He has been unsuccessful in respect of a judicial review
in respect of the policy of how the prison authorities deal with correspondence to prisoners
from the Health and Care Professionals Council (HCPC): Beggs v Scottish Ministers
[2018] CSOH 3; 2018 SLT 199. In this application, the petitioner seeks judicial review in respect of
Page 2 ⇓
2
the respondent’s policy on correspondence to prisoners from the National Health Service
Scottish Bowel Screening Centre (SBSC).
[2]       It is important to note at the outset that the issue before the court in this case is a
narrow one. The petition as originally drafted sought five different declarators in relation to
correspondence with SBSC, including declarator that the respondent had interfered with the
petitioner’s correspondence unlawfully and in breach of article 8 of the European
Convention. The original petition also sought damages for the opening of the petitioner’s
SBSC correspondence. By interlocutor dated 11 May 2018, the Lord Ordinary refused
permission to proceed except in relation to the fifth order sought by the petitioner, namely:
“Declarator that the respondents’ refusal to include prisoners’ correspondence with
the NHS Scottish Bowel Screening Centre as confidential or privilege correspondence
within their policy and Correspondence Directions is unlawful.”
Accordingly the argument before me was limited to this one matter. This case is about the
procedure for dealing with SBSC mail. It is not about the circumstances of the opening of a
particular letter from the SBSC to the petitioner.
Prison Rules on Correspondence
[3]       Prisoners correspondence is regulated by Part 8 of the Prisons and Young Offenders
Institutions (Scotland) Rules 2011 (SSI 2011/331) (the “Rules”). Rule 54 permits prisoners to
send and receive letters and packages by means of the postal service or otherwise. Rule 55
permits a prison officer to open letters and in some circumstances read them. However
Rule 56 limits the power of the officer to open and read confidential letters.
Opening and reading of non-confidential letters
[4]       Rule 55 provides:
Page 3 ⇓
3
“55(1) This rule applies to any letter or package, other than one to which rule 56
or 57 applies, which a prisoner wishes to send or which is addressed to a prisoner.
(2) An officer or employee may open a letter or package to which this rule
applies and remove the contents of that letter or package.
(3) Where an officer or employee proposes to open a letter or package to which
this rule applies, or remove the contents of that letter or package, the officer or
employee may ask the prisoner to be present when the letter or package is opened or
its contents removed.
(4) The contents of a letter of package to which this rule applies may only be read
by an officer or employee
(a) in the circumstances specified in a direction by the Scottish
Ministers ...
and;
(b) in accordance with any conditions specified in a direction by the
Scottish Ministers ...
[5]       The Scottish Ministers have made the Scottish Prison Rules (Correspondence)
Direction 2012 (the “2012 Direction”). Paragraph 3 provides:
Reading of prisoners’ correspondence
3.-(1) Subject to sub-paragraph (2), the contents of correspondence to which rule 55
applies must not be read by an officer or employee unless the officer has reasonable
cause to believe that the contents of the correspondence may
(a) endanger the security of the prison;
(b) endanger the safety of any person;
(c) relate to a criminal activity; or
(d) constitute a breach of paragraph 5 [which lists specific banned items]
...
(3) Correspondence may only be read by an officer under sub-paragraphs (1) …
where
(a) the officer has explained to the prisoner concerned the reason why the
correspondence is being read; and
Page 4 ⇓
4
(b) the prisoner concerned is present when the correspondence is being
read.
Confidential Correspondence
[6]       Rule 56 makes special provision for “confidential correspondence”.
Definition of “Confidential Correspondence”
[7]       Confidential Correspondenceis defined as meaning inter alia “medical
correspondence” and “privileged correspondence”. It should be noted that “medical
correspondence” is a sub-category of “confidential correspondence”, not a separate category
in its own right.
Definition of “Medical Correspondence”
[8]       “Medical Correspondenceis defined in Rule 56(7) as follows:
“medical correspondence” means a letter or package which contains personal health
information about a relevant prisoner and is
(a) addressed to a registered medical practitioner and given to an officer
or employee by the relevant prisoner for the purpose of sending to
that registered medical practitioner’ or
(b) sent to the relevant prisoner at the prison by a registered medical
practitioner;
relevant prisonermeans a prisoner who
(a) is certified as having a life-threatening illness by the registered
medical practitioner from whom the prisoner is receiving treatment
for that illness; and
(b) has obtained the Governor’s prior consent to communicate with that
registered medical practitioner in confidence.”
Page 5 ⇓
5
[9]       The definition of “medical correspondence” corresponds with the facts of the
decision of the Strasbourg court in Szuluk v United Kingdom (2010) 50 EHRR 10. In that case
a prisoner who had suffered a brain haemorrhage was required to go to hospital every six
months for a check-up by his specialist. The prison governor decided that the prisoner’s
correspondence with his specialist would be examined by the prison medical officer to
verify its medical status. The court held that there had been a violation of article 8.
Definition of “Privileged Correspondence”
[10]       “Privileged Correspondenceis defined in Rule 56(7) as follows:
“privileged correspondence” means a letter or package which is
(a) addressed to a person, authority or organisation specified in a
direction made by the Scottish Ministers and which a prisoner gives to
an officer or employee for the purpose of sending to that person,
authority or organisation; or
(b) sent to a prisoner at the prison by a person, authority or organisation
specified in a direction made by the Scottish Ministers;”
It is apparent from this definition that the word “privileged” is used in the ordinary prison
sense of being a discretionary benefit bestowed to prisoners, rather than the technical legal
sense which would apply for example to correspondence between a prisoner and his
solicitor.
[11]       The list of persons authorities and organisations specified by the Scottish Ministers is
set out in paragraph 7 of the 2012 Direction and comprises:
(a) The Scottish Human Rights Commission;
(b) The Equality and Human Rights Commission;
(c) The Law Society of Scotland;
(d) The Office of the Scottish Information Commissioner’
Page 6 ⇓
6
(e) The Office of the UK Information Commissioner;
(f) The Risk Management Authority;
(g) The Samaritans;
(h) The Scottish Children’s Reporter Administration;
(i) The Scottish Legal Complaints Commission;
(j) The Scottish Public Services Ombudsman;
(k) The Scottish Legal Aid Board.
The SBSC is not included in that list.
Opening and reading of confidential correspondence
[12]       The opening and reading of confidential correspondence is dealt with by Rule 56 as
follows:
“56- Opening and reading of confidential correspondence
(1) This rule applies to a letter or package which can be clearly identified,
from the outer face of the envelope or packaging, as containing or comprising
confidential correspondence.
(2) An officer or employee must not open a letter or package to which this
rule applies, or remove the contents of that letter or package, unless
(a) the officer or employee has cause to believe that it contains a
prohibited article or unauthorised property; or
(b) The officer or employee has reasonable cause to believe that
the contents of the letter or package may
(i) endanger the security of the prison;
(ii) endanger the safety of any person; or
(iii) relate to a criminal activity.
Page 7 ⇓
7
(3) Where an officer or employee proposes to open a letter or package to
which this rule applies, or remove the contents of that letter or package,
under paragraph (2), the officer or employee must
(a) inform the prisoner who wishes to send the letter or package
or to whom the letter or package is addressed of the reason for
opening the letter or package or removing its contents; and
(b) ensure that the prisoner is present when the letter or package
is opened or its contents removed, unless the prisoner refuses,
or does not wish, to be present.
(4) The contents of a letter or package to which this rule applies must not
be read by an officer or employee unless that officer or employee has
(a) been authorised by the Governor to do so under paragraph (5);
and
(b) informed the prisoner of the reason for reading the contents of
the letter or package.
(5) The Governor may authorise an officer or employee to read the
contents of a letter or package to which this rule applies where the Governor
has reasonable cause to believe that the contents of the letter or package
may
(a) endanger the security of the prison;
(b) endanger the safety of any person; or
(c) relate to a criminal activity.”
[13]       Rule 57 sets out the procedure which is to be followed when an officer has opened
confidential correspondence which was not identified as such on the envelope.
Factual Circumstances
Correspondence to the petitioner from the SBSC
[14]       The SBSC operates the Scottish Bowel Screening Programme. All men and women
aged over 50 in Scotland can take part in bowel screening by completing a bowel screening
Page 8 ⇓
8
test at home every two years. Every two years the SBSC sends a test kit to everyone
between 50 and 74 years of age. If the recipient wishes to take part in the programme, he or
she posts the completed test kit back to the SBSC. The SBSC then posts the result back to the
individual in two weeks. Most people have a negative result, in which case they are sent
another test in two years’ time. If the result is positive, it means that blood has been found
in the test. It is important to find out if this is a sign of cancer or something else less serious.
If the initial test is positive, the SBSC writes to tell the person about the follow-up test. The
next test is offered by the person’s local health board. This is usually a colonoscopy which
takes place in hospital as a morning or afternoon outpatient appointment. About ten in
every 500 people taking the initial test have a positive result. When these ten people have
the follow-up test it is likely that only one of them will be found to have cancer, four will
have pre-cancerous growths and the other five will be clear. The correspondence from the
SBSC is in standard form. The standard letters bear to be signed by Professor Bob Steele in
his capacity as the Clinical Director of the SBSC.
[15]       It can be seen from this that the SBSC has a very particular and limited function. It is
a national initial screening service. It does not diagnose whether a person has bowel cancer.
It screens the general population and identifies those to whom a further test should be
offered. It does not itself offer the further test. It passes the person on to the person’s local
health board and the local health board takes matters forward. It is the local health board,
not the SBSC, which offers the follow-up test and makes the diagnosis.
[16]       On 4 October 2017, the SBSC wrote to the petitioner enclosing the test kit and
inviting him to send back the completed test kit. The letter was a standard letter which went
out under the name of Professor Bob Steele, Clinical Director. The letter was not addressed
Page 9 ⇓
9
to Mr Beggs at HM Prison, Edinburgh. The letter was addressed to Mr Beggs at “the Health
Centre” at a PO Box in Edinburgh. The PO Box was the PO Box of the prison health centre.
[17]       The envelope in which the SBSC letter had been sent was produced to me. It was
an A5 white envelope, with a clear window for the address to show through from the letter.
The letter was marked “Private & Confidential” and these words would show through the
clear window. The envelope did not state in terms that it was from the SBSC. The front of
the envelope had the NHS Scotland logo on it. The back of the envelope had printed on it
“Return Address: Block 8, Ground Floor, DD3 8EA.” This was the post code of the SBSC.
However, there was no further identification of the precise address of the building in which
the return address was situated. In short, there was nothing on the envelope which would
identify it as having come from the SBSC.
[18]       By letter dated 27 October 2017 (the Second Letter), the SBSC notified the
petitioner that the test result was a negative one. The Second Letter was a standard letter
under the name of Professor Steele. Although the envelope was not produced, both parties
accepted that it would be a similar envelope to that described above in relation to the initial
letter. So again there would have been nothing on the envelope which would have
identified it as having come from the SBSC.
[19]       Edinburgh Prison operates a special protocol (the “Protocol”) relating the
management of all correspondence for this petitioner. The Protocol applies in particular to
the petitioner and not to any other prisoner. The Protocol is set out in instructions by the
Governor dated 20 April 2016. These instructions set out detailed procedures for how the
petitioner’s correspondence is to be dealt with, and for the recording of the procedures in
Log Sheets and for regular audits of the process. The Protocol provides that his mail is to be
Page 10 ⇓
10
retained securely until he is available to receive the mail, at which point his mail is to be
handed over to him witnessed by a member of the prison staff.
[20]       Health care in prisons is provided by the National Health Service, further to a
transfer to the NHS by the Scottish Prison Service in 2011. Although the Second Letter was
addressed to the petitioner at “the Health Centre”, it was given to him by a member of the
prison staff having been processed in terms of the Protocol.
[21]       The Second Letter was opened by a prison officer, Mr Colin Lawrie on 1 November
2017 in the presence of the petitioner. This was done in order to comply with the Protocol.
[22]       There was a dispute as to fact as to whether the letter had been read. The petitioner
averred “Colin Lawrie read the letter, and indicated that he was checking whether the letter
was advising of a medical appointment. The respondent on the other hand averred “the
correspondence contained within the envelope was not read, the correspondence was noted
not to be a notification of an appointment and passed to the petitioner unread”.
[23]       Counsel for the respondent explained that the letter was checked for security
reasons: if a prisoner knows in advance about a medical appointment outside the prison in
an unsecure environment such as a hospital then he or his associates can make plans to take
advantage of that insecurity. The respondent’s averment seems to me on the face of it to be
internally inconsistent as it is difficult to understand how the prison officer could have
identified that the letter did not contain notification of an appointment without reading it.
By reading the letter to discover if there was an appointment, the prison officer was in effect
finding out whether the initial test was positive or negative, as appointments for a follow up
test are only offered to those who have an initial positive test. That is not to say however
that the prison officer would become aware whether the petitioner had cancer: the positive
test at this stage is merely an indication by the SBSC that further testing is being offered by
Page 11 ⇓
11
the local health board. Many people are found not to have cancer when further tested by the
local health board. The factual dispute as to whether or not the Second Letter was read is
not relevant to the limited and narrow declarator sought in these proceedings before me and
accordingly no evidence was led and the factual conflict was not resolved.
[24]       The petitioner made a complaint on prisoner complaint form PCF 1. The complaint
was in the following terms:
Yesterday evening Mr C Lawrie (RFLM) issued me with an item of mail clearly
marked NHS Scotland on the outside of the envelope. The words ‘PRIVATE &
CONFIDENTIAL’ were clearly visible in the ‘window’. The RFLM opened and
scanned the contents of the letter, stating that he was checking that it did not
intimate a medical appointment. The letter contained sensitive personal medical
data which I have not consented to disclose to the SPS.
[25]       In the box in the complaint form headed “What in your view would resolve the
problem?” the petitioner wrote:
The RFLM should explain the action of reading a letter from NHS Scotland and
offer an assurance that such mail will not be read in future. The Governor should
review NHS mail handling procedures to ensure that items of this kind are in future
treated as ‘privileged’ or ‘confidential’”
[26]       On 16 November 2017 the Internal Complaints Committee rejected the complaint,
stating inter alia:
The ICC would like to inform Mr Beggs that mail from the NHS is not classed as
confidential correspondence. Therefore the FLM was following current Scottish
Prison Service policy and was correct to open the mail in question.”
Security risks relating to prisoner’s correspondence
[27]       The respondent is engaged in reducing the volume of drugs and other prohibited
articles entering prison. Drugs enter prison through correspondence. This can be done for
example by enclosing in the envelopes drugs or paper impregnated with drugs.
Confidential correspondenceis not opened and therefore constitutes a security risk. Since
Page 12 ⇓
12
January 2016 there have been more that 1090 drug related finds in correspondence,
including confidential correspondence, addressed to prisoners. I was not provided with a
breakdown as to how many of these finds were in confidential correspondence. However,
the respondent is justifiably concerned about the confidential correspondencesystem
being abused for the smuggling of drugs or either items into prison. I was provided with
copies of nine letters which the respondent had sent to solicitors during 2016 and 2017
notifying various solicitors that confidential letters from them to a prisoner had contained
drugs. That is not to say the solicitors were involved in the smuggling of drugs, merely that
a system of confidential correspondenceis open to abuse.
[28]       The respondent has a particular concern about the re-use of envelopes used for
confidential correspondence. Once a prisoner has received legitimate confidential
correspondence the used envelope can find its way out of the prison to be sent back in with
illegitimate enclosures.
[29]       A “double envelope” system between solicitors and prisoners is recommended for
confidential correspondence between organisations specified in the list in the 2012
Directions and prisoners. The precise details of the system vary between organisations, but
in essence the envelope containing the letter is enclosed within an outer envelope which
identifies that the enclosed correspondence is privileged.
Submissions
Submissions for the petitioner
[30]       Senior counsel for the petitioner submitted that the failure to include correspondence
with SBSC as confidential correspondence within the scope of the prison rules and the
2012 correspondence direction was irrational. “Medical correspondence” was confidential
Page 13 ⇓
13
for the purposes of the Prison Rules, but only in relation to prisoners “certified as having a
life-threatening illness” by the prisoner’s medical practitioner. The State was under a
positive obligation under the European Convention to protect the confidentiality of medical
information relating to a patient (I v Finland (2009) 48 EHRR 740). It was far from clear that
in ECHR terms confidentiality attached to medical correspondence with prisoners only in
the restricted circumstances envisaged in Rule 56(7) (Szuluk v UK (2010) 50 EHRR 227). Nor
was it obvious why the position should be different in domestic law.
[31]       He further submitted that there was no evidence produced by the respondent that
the level of risk presented by correspondence from medical sources in general and SBSC in
particular posed a material risk. In the absence of evidence that correspondence from a
reputable medical source such as SBSC had given rise to an elevated risk of security, the
policy was irrational. There was a very real likelihood of prisoners having correspondence
with SBSC and a very low likelihood of correspondence with SBSC interfering with the
security of prisons.
Respondents submissions
[32]       Counsel for the respondent submitted that the test for irrationality was a high one
(Nottinghamshire County Council v Secretary of State for the Environment [1986] A 240 at
page 247, AXA General Insurance Ltd v HMA [2012] 1 AC 868 at paragraph [97].) The nature
of the discretion given to Scottish ministers to make a direction containing a list was broad
and unfettered. The 2012 Direction reflects the policy judgement designed to maintain
security in prison. The court should show even greater caution than normal in applying the
irrationality test where the policy was based in security considerations. The respondent had
not exercised its discretion irrationally.
Page 14 ⇓
14
Discussion
Scope of this petition for judicial review
[33]       The scope of this judicial review is a narrow one. The only question before me is
whether the respondent’s refusal to include prisoners’ correspondence with the NHS
Scottish Bowel Screening Centre as confidential correspondence is unlawful.
[34]       It is not necessary to draw a distinction, as has been done in the declarator sought,
between confidential correspondence and privileged correspondence, as privileged
correspondence is merely a sub-category of confidential correspondence.
Rationality of respondent’s policy decision on non-inclusion as confidential correspondence
[35]       In considering whether it was irrational not to include correspondence with the
Health and Care Professionals Council in the 2012 Direction, Lord Tyre said:
“[22] As Sir Thomas Bingham MR observed in R v Ministry of Defence Ex p Smith
at [1996] A.B., p.556:
The greater the policy content of a decision and the more remote the subject
matter of a decision from ordinary judicial experience, the more hesitant the
court must necessarily be in holding a decision to be irrational. That is good
law and, like most good law, common sense Where decisions of a policy-
laden, esoteric or security-based nature are in issue even greater caution than
normal must be shown in applying the [irrationality] test ...
The decision taken in the present case as to which bodies to include in a direction of
the purposes of what is now r.56 was a policy decision taken by the respondents,
having regard, on the one hand, to a desire to allow prisoners to correspond on
sensitive (but not legally confidential) matters without their mail being opened
(though not read) and, on the other hand, to the need to restrict means by which
prohibited items such as drugs may enter prisons. It is one with which the court
should be slow to interfere unless it is obvious that it is beyond the range of decisions
reasonably open to the respondents. In my view the circumstances of the present
case do not come close to meeting that test. The assessment of risk of abuse of the
privilege with a view to smuggling in prohibited items is a task best carried out by
the respondents. I accept that there is a clear and legitimate security reason for
Page 15 ⇓
15
restricting the number of bodies on the list.Beggs v Scottish Ministers
[2018] CSOH 3; 2018 SLT 199
[36]       Whether a correspondence from any particular body ought to be included in the
definition of confidential correspondence is an operational matter. Confidential
correspondence is a security risk. Drugs and other contraband materials may enter the
prison through being included in envelopes containing confidential correspondence. The
risk of this is greater than the risk of the sender of confidential correspondence including
such contraband. After a genuine confidential letter is received, the envelope may be
recycled by prisoners and sent back into the prison containing contraband items. The
envelopes from SBSC identify only that they are from the National Health Service. They do
not identify that they are from SBSC. I was informed that around 20-25 pieces of NHS
correspondence are received each week at HMP Edinburgh. Only some of these would
include correspondence from the SBSC. SBSC correspondence is not “double enveloped”.
These are all factors which the respondent was entitled to take into account in making its
operational decision.
[37]       The question which then arises is whether the medical nature of the correspondence
from SBSC outweighs the security factors to such an extent the respondent’s decision is
obviously beyond the range of decision reasonably open to the respondent.
[38]       The protection of medical data is of fundamental importance to a person’s enjoyment
of his or her right to family life as guaranteed by article 8 of the European Convention (I v
Finland paragraph (38)). However such protection is not an absolute right. The control of a
prisoner’s correspondence under the Rules to ensure that it does not contain material which
is harmful to prison security or the safety of others or is otherwise of a criminal nature. Such
Page 16 ⇓
16
interference pursues the legitimate aim of “the prevention of disorder or crime” within the
meaning of article 8(2) (Campbell v UK at paragraph 41).
[39]       The balance between the protection of medical data and the prevention of disorder or
crime was considered by the European Court of Human Rights in Szuluk. In that case the
European court recognised that some measure of control over a prisoner’s correspondence is
called for and is not of itself incompatible with the convention (para 45), but found on the
facts of the case that the monitoring of the prisoner’s medical correspondence did not strike
a fair balance. The court placed particular weight on the severity of the prisoner’s medical
condition, which was life-threatening (para 47). It also placed weight on the factor that
allowing the prison medical officer to read the correspondence might lead him to encounter
criticism of his own performance (para 49). It found the general security difficulties
involved in monitoring correspondence not to be applicable as the correspondence was
between one prisoner and one medical specialist (para 52).
[40]       The decision in Szuluk does not extend to the circumstances of this petition.
[41]       The decision in Szuluk related to correspondence between a prisoner and a medical
specialist treating the prisoner’s life-threatening disease. Although bowel cancer is a life-
threatening disease, the petitioner did not have it. Even if the initial test had been positive,
this would not necessarily have meant that the petitioner had cancer, as further tests would
have been required to establish whether this was the case. The further tests would be
undertaken not by SBSC but by the local health board. It is for the local health board, not
the SBSC, to decide whether there is a diagnosis of cancer, and if so to arrange treatment in
conjunction with the patient’s GP or the NHS-operated prison medical service. The SBSC
would not at any stage become involved in the medical treatment of a prisoner: it merely
operates a national programme of initial screening.
Page 17 ⇓
17
[42]       Further, unlike the situation in Szuluk, the initial bowel cancer screening test result
implied no criticism of the prison medical service.
[43]       In addition, the scope for a security breach is much greater in the current case than it
was in Szuluk. In Szuluk, there was very little security risk as the correspondence was
limited to one named prisoner and the medical specialist treating his particular illness. In
the current case there is a significant volume of regular standardised correspondence
addressed to prisoners from the SBSC and from other parts of the NHS using similar
envelopes. The SBSC writes a standard form letter every two years to all prisoners over the
age of 50. It sends the letters in envelopes which give no clear indication that they come
from the SBSC and are not easily distinguishable from other NHS envelopes. The security
risk of correspondence being used for smuggling is a factor relating to the prevention of
disorder or crime which the respondent is entitled to take into account in deciding whether
to bring SBSC correspondence within the definition of “confidential correspondence”.
[44]       The respondent’s decision is of a policy laden and of a security driven nature. I agree
with Lord Tyre that there is a clear and legitimate security reason for restricting the number
of bodies on the list. The article 8 right to the protection of medical data is not an absolute
one, but is qualified by security considerations. This case is a clear example of a situation
where great caution must be shown by the court in applying the irrationality test.
[45]       The SBSC does not provide medical treatment. There is no personal connection
between the medical practitioner who is the formal signatory of the letter and the recipient
of the letter: the letter is in a standard form which bears to be signed by the head of the
SBSC. The SBSC merely operates as the national provider of an initial screening service
which may or may not lead to a prisoner receiving medical treatment from the local health
board and the prison health service. In operating that service the SBSC sends standardised
Page 18 ⇓
18
letters to a significant proportion of the prison population each year. The letters are
addressed to the prisoners at the NHS-operated prison medical service address and not at
the prison address. The assessment of the security risk of SBSC correspondence (or re-used
SBSC envelopes) being used for smuggling drugs or other items into prison is a task best
carried out by the respondent.
[46]       For these reasons I hold that the decision of the respondent not to include
correspondence with SBSC in the definition of “confidential correspondence” in the Rules
has not been demonstrated to be irrational.
Procedures for medical appointments
[47]       The petitioner’s note of argument narrated that the petitioner understood that
correspondence from medical practitioners is opened unless categorised as “medical
correspondence” in terms of the Rules, and is read by the prison officer opening the mail in
the prisoner’s presence to establish whether it contains a medical appointment. The note
submitted that if this was correct, it was not an appropriate mode of handling mail
concerning medical matters, and that the need to manage prisoner’s medical appointments
could be done through the prison health centre. The respondent’s position was that it was
appropriate as it was done at the request of the petitioner: prior to 2013 his correspondence
on medical matters had been dealt with by the prison health centre, but as a result of a
complaint made by him on the ground that it should be dealt with in the same way as his
ordinary correspondence and not diverted to the health centre, the procedure was altered to
comply with his wishes.
[48]       The petitioner has no declarator nor any averments nor plea in law directed towards
this submission. The declarator sought is limited to the SBSC and does not extend to
Page 19 ⇓
19
medical practitioners in general. The declarator is limited to the policy of inclusion of SBSC
correspondence within “confidential correspondence” and does not extend to a challenge as
to the circumstances in which the Second Letter was opened by a prison officer rather than
the prison health service. In my opinion this submission is irrelevant to the current petition.
Order
[49]       I refuse the petition and reserve all questions of expenses in the meantime.



BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSOH_110.html