Judge criticises "disproportionate" and "discriminatory" law

An Appeals Court judge has criticised the government's decision to close down smoking rooms in England's secure mental hospitals as "lacking democratic endorsement" and "prima facie discrimination". Lord Justice Keene delivered his condemnation of the total ban on smoking for England's 3,900 secure psychiatric patients at the end of a court case brought by two inmates of Rampton secure hospital.

The judge drew attention to the fact that secure hospitals in Wales and Scotland have been granted exemptions from the 2007 smoking ban and described England's "failure to exempt secure mental hospitals from the prohibition on smoking indoors" as "not proportionate to the aim which it is sought to realise."

Rampton hospital - run by Nottinghamshire Healthcare NHS Trust - pre-empted the nationwide ban by prohibiting smoking throughout its buildings in March 2007. Since its 400 residents are not allowed outside, this effectively denies inmates any opportunity to smoke.

The British government granted England's secure hospitals a one year exemption from the smoking ban which ended in July 2008. Prisons and residential care homes have been granted an indefinite exemption from the ban, as have secure hospitals in Scotland and Wales.

The two men were appealing a ruling made last year when the Court of Appeal dismissed their case that Rampton's smoking ban meant that inmates in psychiatric prisons were the only people who were forbidden from smoking in their own home. They appealed that decision on the grounds that the European Convention on Human Rights guarantees the right to "respect for private and family life" and because a total smoking ban was "irrational and contrary to the common law principle of equality", particularly since inmates in other prisons were allowed to smoke.

Around 70% of patients in secure hospitals are smokers and a 2008 survey showed that "almost all" psychiatric patients were opposed to a total smoking ban in mental health units. Another survey showed that 90% of staff members were opposed to a total smoking ban. Since the full ban came into effect in July 2008, staff have reportedly been turning a blind eye to smoking in psychiatric wards.

The two men had reason to believe they would win the case since the (then) Secretary of State for Health, Patricia Hewitt, emphasised the need to stay within the Human Rights Act when discussing the ban in 2006, saying that it was:

"necessary to exempt from the ban people's own homes and places that are, in effect, someone's home, at least temporarily - in other words, long-term residential care homes, hospitals and mental health hospitals for adults, prisons and hotel bedrooms. We are taking the power to make the limited exemptions not only because we believe it is right in principle, but to fulfill our obligations under the Human Rights Act 1998 on respect for private life."

The court accepted that Rampton constituted the appellants' home but asserted that secure hospitals were not places where inmates could "expect quiet enjoyment" and that human rights were "significantly penetrated by reason of the very fact that a person is confined within a secure hospital." The court noted that: "The patient does not lose all right to a private life but the nature of that life and the activities which he may pursue are seriously restricted."

As an example, the court stated that while the Human Rights Act protected the individual's right to eat what he or she pleased in their own home, this did not apply in prisons where food was provided by the authorities:

"There is no basis for distinguishing the loss of freedom to choose what one eats or drinks in such an institution and the ban on smoking."

Similarly, the court noted that alcohol was not permitted in secure hospitals:

"We do not think that there is any real distinction between banning alcohol and banning smoking in Rampton." *

In conclusion, the court ruled that a total smoking ban "in such an institution" did not have a "sufficiently adverse effect on a patient's physical or moral integrity." In response to the appellants' complaint that they were being treated differently to prison inmates, the court accepted that "in both institutions persons are detained by compulsion of law" while asserting that "prisons [do] not fall within the Government's commitment to create a smoke free NHS. Mental health units and prisons provide very different services." The men's appeal was therefore turned down.

However, in his summing up, Lord Justice Keene was scathing about the government's handling of the smoking issue in secure hospitals. He raised the pertinent point that MPs were probably not aware that an indoor smoking ban in mental units represented a total ban on smoking since patients were not allowed outside.

"I readily acknowledge that, in assessing proportionality in a matter like this, weight has to be attached to the position endorsed by the democratically-elected body. However, nothing put before this court demonstrates that Parliament ever appreciated that in reality the consequence of Regulation 10(3), the time-limit on exemption for mental health units, was likely to be a complete or virtually complete ban on smoking for those detained in secure mental hospitals. There was no debate on the merits of such an outcome, which means that there has been no democratic endorsement of it."

Lord Justice Keene noted that the "principal objective" of the smoking ban of July 2007 was to "protect people against other people's smoke". But he made it clear that this aim could have been achieved without passing a blanket ban on smoking in all English psychiatric prisons:

"[N]either the Scottish Executive nor the Welsh Assembly have found it necessary to impose such a total ban on smoking in the interiors of mental health hospitals and units...Yet in both countries the same public health objective is being pursued. At one point in the hearing before us, Mr Swift [acting for Patricia Hewitt] conceded that that Scottish and Welsh experience shows 'that that option is available.'"

Furthermore, he agreed with the appellants' complaint that they were being discriminated against, compared to ordinary prisoners:

"Those who are detained in prison are exempted from the smoking ban by virtue of regulation 5, in that "rooms" in prisons may escape the ban by being designated, but those offenders who are the subject of orders under sections 37 and 41 of the Mental Health Act 1983 (hospital orders and restriction orders) enjoy no such exemption. Such a difference in treatment is prima facie discrimination."

Lord Justice Keene disagreed with his two colleagues, saying that Article 8 and Article 14 of the European Convention on Human Rights had indeed been breached:

"In the light of the matters to which I have referred, it seems to me that the prohibition in England on smoking in institutions like Rampton, a prohibition which results from the cessation of the exemption in Regulation 10 plus the security considerations applicable there, is more than is necessary to accomplish the public health objective of protecting people against second-hand smoke. It is therefore disproportionate, and there is a breach of Article 8."

"...[M]y conclusion is the same, namely that the failure to exempt secure mental hospitals from the prohibition on smoking indoors, with its real-life consequences, is not proportionate to the aim which it is sought to realise. That being so, I conclude that there has also been a breach of Article 14 as a result of regulation 10(3)."

Despite Keene's support for the two men, a majority verdict of 2 to 1 saw the appeal turned down. The ruling leaves the door open to a total ban on smoking in prisons and residential care homes at some stage in the future. The court explicitly stated that "[t]he Secretary of State recognised the desirability of attaining smoke free prisons but did not consider that that objective could be achieved in the short term" and that "the Prison Service has put policies in place that further limit smoking in prisons and aims to attain 100 per cent smoke free prisons in the future."





The full ruling can be read at http://www.bailii.org/ew/cases/EWCA/Civ/2009/795.html

The appellants' appeal rested on Articles 8 and 14 of the European Convention on Human Rights:

"Article 8 - Right to respect for private life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14 - Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status"



*The comparison with alcohol came up when the Health Act was voted on (Feb 14 2006). Asked by Christopher Chope MP why "if it wrong for prisoners to be able to drink alcohol in prison, why is it right under the government's legislation for them to be able to smoke?", Patricia Hewitt replied:

"We believe that it is right for prisoners, who quite properly have no choice about where they live, to be able to exercise choice in the matter of smoking within appropriate restrictions."




With thanks to Bill Gibson