Mental health – human rights – right to life
The claimant was a restricted patient who had contracted Hepatitis C. He sought to challenge the hospital’s policy not to supply condoms to patients as part of its ban on sexual relationships between patients, on the grounds that:
it was a breach of his article 2 European Convention right (by failing to protect the lives of those he might have sexual contact with) as well as his article 8 right to physical integrity.
it was too rigid as it admitted of no exceptions;
it was irrational.
Dismissing the application, the judge found that the ‘no-condoms’ policy did not present a real and immediate threat to life; and the hospital was doing all that could be reasonably expected to obviate any threat that existed. The evidence was that there was a low risk of sexual activity between patients and that, if it occurred, it was not likely to be on a regular basis. The risk of infecting another patient was therefore very low and when balanced against the need for patient care, safety and security, the policy was proportionate.
It was clear, from the evidence of hospital’s doctors, that the hospital had not closed its mind or fettered its discretion to exceptions to its policy. If new or exceptional circumstances arose (eg, if the risk of infection became greater), the hospital would become legally obliged to review its policy.