The right or freedom to smoke does not engage Article 8(1); Article 14 could not therefore be relied upon either. In any event, the SSH's smoke-free regulations and the Trust's smoke-free policy would be justified under Article 8(2), and the different treatment under the regulations for mental health units compared with prisons, care homes and hospices would be justified under Article 14.
R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust (2009) EWCA Civ 795
The Claimants intend to seek leave to appeal to the Supreme Court if Legal Aid is granted.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
HUMAN RIGHTS — Right to respect for private and family life — Smoking ban — Regulations providing temporary exemption for mental health units — High security psychiatric hospital introducing policy for smoke-free environment — Whether detained mental patient’s right to respect for private and family life engaged — Whether infringement justified — Human Rights Act 1998, Sch 1, Pt I, arts 8, 14 — Health Act 2006, ss 1, 3 — Smoke-free (Exemption and Vehicles) Regulations 2007 (SI 2007/765), reg 10(3)
A policy of banning smoking in the premises of an NHS trust, which had the effect of prohibiting smoking for those detained in a high security psychiatric hospital, did not contravene the patients’ human rights and was lawful.
The Court of Appeal so held (Keene LJ dissenting), dismissing the claimants’ appeals against the decision of the Divisional Court of the Queen’s Bench Division  PTSR 219 on 20 May 2008 to dismiss (1) a claim by the claimant, E (substituted for G), for judicial review of the policy of Nottinghamshire Healthcare NHS Trust banning smoking at Rampton Hospital where he was detained, and (2) a claim by the claimant, N, for judicial review of the decision of the Secretary of State for Health to make reg 10(3) of the Smoke-Free (Exemption and Vehicles) Regulations 2007 on the ground, inter alia, that the temporary rather than permanent exemption provided by reg 10(3) from the requirements of the Health Act 2006 banning smoking in all premises used by the public by 1 July 2007 was incompatible with the rights of detained mental patients under the Convention for the Protection of Human Rights and Fundamental Freedoms.
LORD CLARKE OF STONE-CUM-EBONY MR and MOSES LJ said that the question was whether the trust’s policy of prohibiting smoking for staff and patients throughout trust premises infringed the claimants’ rights under art 8 when the policy was introduced on 1 April 2007 and/or until 1 July 2008, when the temporary exemption for mental health units from the general smoking ban in the Health Act 2006 expired. The first question was whether art 8 conferred a right on patients detained in Rampton Hospital to smoke without arbitrary interference. The freedom protected by art 8 was not the same as the freedom to do whatever a person chose to do, even in a private space: see Baroness Hale of Richmond in R (Countryside Alliance) v Attorney General  1 AC 719. The issue as to the scope of art 8 could not be answered by considering simply whether smoking was an activity integral to a person’s identity, or was an aspect of social interaction or whether the hospital was to be regarded as a patient’s home within the meaning of art 8. Rather, a conclusion could only be reached by consideration of all those factors. The hospital was the claimants’ home, but it was not the same as a private home and the distinction was of significance. It was a public institution, operated as a hospital under s 4 of the 2006 Act. Supervision was intense for safety and security reasons. It was a public, not a private place, even though a patient’s private life had not been eroded completely. It was in that context that the nature of the activity had to be considered. What was important was freedom from interference by the state. That freedom was already significantly restricted within the confines of a secure hospital. There was no basis for distinguishing the loss of freedom to choose what to eat or drink in such an institution and the ban on smoking. Art 8 applied to closed institutions, but to a far more limited extent than it would to activities in a person’s home. The less the claimant could rely upon the nature of the place in which the activity was pursued, the more he had to rely upon the proximity of the activity to his personal identity or physical and moral integrity. Difficult as it was to judge the importance of smoking to the integrity of a person’s identity, it was not sufficiently close to qualify as an activity meriting the protection of art 8. Art 8 did not protect a right to smoke at the hospital. The prohibition did not, in such an institution, have a sufficiently adverse effect on a patient’s physical or metal integrity. The appeals under art 8 failed. If art 8(1) standing alone was not engaged, the right to smoke could not come within the ambit or scope of art 8 for the purposes of art 14. If art 8 had been engaged, the trust and the Secretary of State had successfully justified the ban within art 8(2).
KEENE LJ delivered a dissenting judgment.
Regina (G) v Nottinghamshire Healthcare NHS Trust
Regina (N) v Secretary of State for Health
 EWCA Civ 795;  WLR (D) 260
CA: Lord Clarke of Stone-cum-Ebony MR, Keene ,MosesLJJ: 24 July 2009
Appearances: Paul Bowen and Azeem Suterwalla (instructed by Cartwright King, Nottingham) for E; Paul Bowen and Azeem Suterwalla (instructed by Scott-Moncrieff, Harbour & Sinclair) for N; David Lock and Nageena Khalique (instructed by Mills & Reeve LLP, Birmingham) for the NHS Trust; Jonathan Swift and Karen Steyn (instructed by Solicitor to Department for Work and Pensions and Department of Health) for the Secretary of State; Helen Mountfield (instructed by Legal Department, Equality and Human Rights Commission) for the Equality and Human Rights Commission, intervening by written submissions.
Reported by: Susan Denny, barrister
R (G) v Nottinghamshire Healthcare NHS Trust
ICLR  WLR (D) 260