HUMAN RIGHTS — Right to respect for private and family life — Smoking ban — Claimants detainees at high security psychiatric hospital — Regulation providing mental health units temporary exemption from smoking ban — Whether regulation to be read as providing mental health units with permanent exemption — Whether interference with claimants’ Convention rights — Human Rights Act 1998, s 3(1), Sch 1, Pt 1, arts 8, 14 — Smoke-free (Exemption & Vehicles) Regulations 2007 (SI 2007/765), reg 10(3). A provision which had the effect of prohibiting smoking in a high security psychiatric hospital was not incompatible with the human rights of detained mental patients and was not unlawful.
The Queen’s Bench Divisional Court so held when dismissing claims for judicial review by the claimants, G and B, against the Nottinghamshire Healthcare NHS Trust, and by N against the Secretary of State for Health, by which the claimants applied to quash reg 10(3) of the Smoke-free (Exemption & Vehicles) Regulations 2007 as being incompatible with the rights of detained mental patients under the Convention for the Protection of Human Rights and Fundamental Freedoms. Alternatively, they sought a declaration that reg 10(3) was unlawful for introducing a partial exemption from the requirement in the Health Act 2006 that all premises used by the public be “smoke-free” from 1 July 2008. In the further alternative, they claimed that the regulation should be read and given effect under s 3 of the Human Rights Act 1998 by reading into it the words “except in mental health units where it is not feasible to permit patients to smoke outdoors”.
PILL LJ, giving the judgment of the court, said that the claimants either were, or had been, detained at Rampton Hospital, a high security psychiatric hospital managed by the Nottinghamshire Healthcare NHS Trust. S 1 of the Health Act 2006 made provision for the prohibition of smoking in certain premises, places and vehicles. A series of exemptions were granted by Pt 2 of the 2007 Regulations. Reg 10 provided for temporary exemption for mental health units and reg 10(3) provided that the exemption would cease to have effect on 1 July 2008. It was not possible to read the words “except in mental health units where it is not feasible to permit patients to smoke outdoors” into reg 10(3) of the 2007 Regulations without the court performing a legislative as distinct from an interpretative act. Preventing a person from smoking did not generally involve such adverse effect upon the person’s physical or moral integrity as would amount to an interference with the right to respect for private or home life within the meaning of art 8 of the Convention. There was not an absolute right, subject to art 8(2) to smoke wherever one was living. The references to the “ambit” or “scope” of art 8 did not introduce, via art 14, an application of art 8. If, contrary to that, the claimants’ art 8 rights were engaged, health considerations, security considerations and the procedure adopted for scrutinising the regulations supported the conclusion that the measures taken were proportionate.
R (G) v Nottinghamshire Healthcare NHS Trust  EWHC 1096 (Admin)
R (N) v Secretary of State for Health
R (B) v Nottinghamshire Healthcare NHS Trust;  WLR (D) 162
QBD: Pill LJ and Silber J: 20 May 2008
Appearances: Paul Bowen (Scott-Moncrieff, Harbour & Sinclair) for the first and second claimants; Hugh Southey (Roberts Moore Nicholas Jones, Birkenhead) for the third claimant; David Lock and Nageena Khalique (Mills & Reeve, Birmingham) for the NHS Trust; Jonathan Swift and Karen Steyn (Solicitor, Department of Health) for the Secretary of State.
Reported by: Ben Urdang, barrister