R (G & Others) v Nottingham Healthcare NHS Trust [2008] EWHC 1096 Admin

This case concerned an application by the claimants, patients at Rampton Hospital, to quash Regulation 10(3) of the Smoke-free Regulations 2007 as being incompatible with the rights of detained mental patients under the ECHR; alternatively, a declaration that Regulation 10(3) is unlawful, was sought.  The regulation was said to be unlawful in that it introduces only a partial rather than complete exemption in relation to mental health units required under the Health Act 2006.

Section 1 of the 2006 Act makes provision for the prohibition of certain premises places and vehicles.  Section 3 provides that the ‘appropriate national authority’ may make regulations providing for specified descriptions of premises not to be smoke-free; such premises includes in particular “any premises where a person has his home, or is living whether permanently or temporarily (including …. places where a person may be detained) “  Regulation 10 provides for temporary exemptions for up to 2 years after in mental health units so that designated rooms may be provided for smoking for detained adults.

Various points had been made by interested parties at the consultation stage of the 2006 Act including the Disability Rights Commission and Royal College of Psychiatrists both of whom felt that a smoke-free NHS would have long term benefits for the health of many patients.  The Royal College of Physicians went further and argued for no exemptions in mental health units.  The claimants provided evidence to the contrary from a leading Professor of Psychology who reported that nicotine could enhance the cognitive functioning of patients with psychiatric and neurological conditions and there could be some short-term psychological benefits for those with mental disorders.  Her conclusion was that smoking produced acute benefits to patients with mental disorders in terms of enhancement of certain cognitive processes and that the smokers themselves perceived it to be more helpful in coping with stress than smokers who did not have mental disorders.  However, other evidence provided by Rampton confirmed that there had been health benefits such as the reduction in the requirement for medication in relation to asthma and other respiratory illnesses as well as secondary  benefits of less manipulative behaviour, bribery, exploitation and bullying.

The claimants challenged the temporary nature of the exemption and that the hospital should be treated as home for the claimants for the time they are there and therefore relied on Article 8 ECHR as basis for their claim.  The Joint Committee on Human Rights contemplated that Article 8 might be engaged during its considerations of the impact of the Bill but that “the interference with the private life of smokers is in our view likely to be upheld as being proportionate”.  The claimants used the Commons debates on the Bill recorded in Hansard to strengthen their arguments that the legislation was not intended to ban smoking in a person’s home. The court decided that there was nothing inherently wrong with looking behind the statute to determine the intention of Parliament and whether the statute achieved such an objective. This involved the court making a ‘value judgment’ by reference to the current circumstances and the effect and impact of the legislation on the current circumstances.  The value judgment also involved examining the proportionality of the measures taken in relation to Article 8 rights; there was nothing wrong in having regard to Hansard in order to make such judgments and the claimants were entitled to rely on what was said during the debates in support of its submissions under Article 8 (1) and (2). Wilson v First County Trust followed.  However, the court would not be bound by Parliament’s statements of intention with regard to Article 8 and that no legitimate expectation arose from statements by Ministers or Government responses to consultations.
The issue for the court was whether Article 8 was engaged by the proposed ban either alone or read with Article 14 ECHR and if so whether the failure to provide smoking rooms for patients in residential accommodation in mental health units could be justified under Article 8(2).  The claimants argue that respect for private and family life meant the right to do whatever one wanted in private however foolish it seemed to others.  Smoking was a social pastime that engaged Article 8 and the 2006 Act had not envisaged preventing people from smoking in their own homes.  The claimants also argued that Article 8 protected “those features of a person’s life which are integral to his identity” per Lord Rodger in R (Countryside Alliance) v AG 2007. Baroness Hale in this case summarised succinctly that Article 8 reflected 2 separate but fundamental values. Firstly, the inviolability of the home and personal communications from official snooping.  Secondly, the inviolability of a person’s personal and psychological space within which each individual develops his or her own sense of self and relationships with other people.  But she said Article 8 fell short of protecting everything that a person might want to do and it certainly did not protect things that could only be done by leaving that private space and engaging a public activity

From the authorities available the court assessed various concepts of respect for private and home life in Article 8; respect for physical and psychological development, personal development and autonomy physical and moral integrity,  mental stability, integrity of a persons identify and protection of private sphere and private space.  However, the court did not accept that the respect required by Article 8 was coextensive with the right of absolute independence. The law could place restrictions on a person freedom of action without necessarily interfering with the right to respect required by Article 8.  Preventing a person smoking did not generally involve an adverse effect on a person’s moral or physical integrity or the other concepts cited above as would amount to an interference with the right to respect for private or home life within the meaning of Article 8.  There was no notion of an absolute right subject to Article 8(2) to smoke wherever one was living. Personal autonomy required the consideration to the circumstances in which one was living.  Although the court held that a  distinction was to be drawn when considering the engagement of Article 8 between a private home and an institution it did not actually state what these distinctions were!  However, its point was that the privacy and freedom of action to which a person is entitled varies with the nature of the accommodation and the circumstances in which they are there.  Whether Article 8 was engaged in relation to  that particular activity would depend on these factors as well as the activity in question.  In the present context the court did not consider that smoking as an aid to social contact assisted the case to engage Article 8.  The court held that the right to respect private life and home in Article 8 did not impose a general obligation on those responsible for detained people to make arrangements enabling them to smoke; there was no general right for mental patients to smoke or obligation to permit smoking.

The claim under Article 14 on the basis that the matter fell within the ‘ambit’ or ‘scope’ of Article 8 also failed.  The court also considered whether if contrary to its own  conclusion Article 8 had been engaged, the smoke-free policy enacted in Regulation10 and the policy of the Trust was justified under Article 8(2) ECHR.  The claimants had argued that the Regulation was not a proportionate interference with their Article 8 rights and the court had to decide whether a fair balance had been struck between competing rights of those concerned. The court decided that the legislative objective of improving the health and reduction in exposure of non-smokers to smoking related illnesses were sufficiently important to justify limiting rights under Article 8 (2).  The provisions of Regulation10(3) and the Trust’s policy were rationally connected to the legislative objective of reducing levels of smoking related diseases and increasing the number of smoke-fee enclosed public spaces. Both measures were proportionate and no more than necessary to accomplish the aim of the statute.

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