R (on the application of N) v Secretary Of State For Health: R (on the application of E) (Appellant) v Nottinghamshire Healthcare NHS Trust & Equality & Human Rights Commission (2009) EWCA Civ 795

In this case the Court of Appeal considered whether the ban on smoking at Rampton high security psychiatric hospital was a breach of the rights of patients under the European Convention on Human Rights [the ‘ECHR’]. The appellant’s sought to challenge the decision of the NHS Trust to implement a policy of no smoking both inside and outside the buildings and further to establish that the ban on smoking in places of work introduced by the Health Act 2006 and qualified by the Smoke-free (Exemptions and Vehicles) Regulations 2007 [the ‘2007 Regs’] were discriminatory and in breach of article 8 (the right to respect for private and family life, home and correspondence) and article 14 (the prohibition on discrimination) of the ECHR. The 2007 Regs set out that smoking rooms could be set up in prisons on a permanent basis and within mental health units, but only until 01.07.08.  Such a distinction they argued, was discriminatory and given that the average period of detention in Rampton was 8 years it should be considered as their home.

The Court of Appeal, agreed with the earlier High Court judgement, by distinguishing between a private home and that of a public institution in which people lived. This was a hospital where residents were required, for the safety of the public and themselves, to be subjected to intense supervision. They were unable to determine freely what to eat, drink etc and were not free to do as they pleased. It took the view that the ‘home’ that individuals had to right to respect of, under article 8, was a conceptual space in which one was should be free from unnecessary state intrusion. The level of degree to which an individual could expect to be free of any limitations to such freedom did vary depending on the nature of the accommodation in which they lived. Whilst it accepted that a patient within a secure mental health unit did not lose all rights to respect from a private life some interference and loss of freedom was legitimate. In this case the appellants had not shown that the ban on smoking had made their lives intolerable or had any significant effect on their physical or moral integrity. The majority judgment in fact likened the ban on smoking to the loss of personal autonomy over what to eat or drink one experienced when living in such an institution. The court of Appeal also did not accept that the social interaction enjoyed  when smoking was something that could be protected by article 8 of the ECHR.

Keene LJ took the view that the 2007 regs did engage article 8 because for some the ban was complete as they would not be able to go outside, he was also of the opinion that the prohibition was more than was necessary to achieve its objective of protecting others from second hand smoke and therefore was disproportionate. He concluded that the 2007 regulations breached both article 8 and 14 of the ECHR, but did not accept that the Trust’s policy was in breach of either article. He reached this view partly because of the duty of care the hospital owed to vulnerable, mentally ill patients, but also because he recognised that the considerable additional costs of supervising dangerous patients to smoke in the grounds provided a reasonable and proportionate justification for imposing a complete ban now that the Trust were prevented, post 01.07.08, from allowing patients to smoke within premises because of the effect of the 2007 regs.

The majority in the Court of Appeal, having concluded that article 8 was not engaged by the ban on smoking, confirmed that article 14 would not be engaged either as this is not a stand alone provision.

The Court went further however and argued that even if a smoke free policy was to engage article 8 it would, in their view, be legitimate to restrict a patient in such a way for the benefit of their health and the health of those around them as it was reasonable for the Trust to approach the issue of smoking as it did any other methods of self-harm even if these were lawful outside the hospital. It also concluded that the 2007 regs was the result of the ‘recent and considered judgment of the legislature’ so that even if article 8 and 14 were engaged by the ban and the different treatment of prisoners to those detained within mental health units contained within the 2007 regs this was justifiable as reasonable and proportionate.

Appeal Dismissed

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