Blanket ban on smoking in mental health hospitals declared ‘lawful’

Court of Session Outer House
Court of Session Outer House

Two patients detained at low and medium secure psychiatric units who claimed that the blanket ban on smoking in the grounds of the mental health hospitals breached their human rights have had their actions dismissed.

A judge in the Court of Session ruled that the complete ban on smoking was “lawful” and did not breach the petitioners’ rights to respect for a private life, but held that the prohibition on lighters was “unlawful”.

Smoking ban

Lady Carmichael heard that the petitioners, Mr A and Mr B, who are detained in the Rowanbank Clinic and Leverndale Hospital respectively, raised an action against the respondents NHS Greater Glasgow and Clyde Health Board contending that the comprehensive prohibition on smoking engaged their rights under Article 8 of the European Convention on Human Rights (ECHR) and was unlawful because it was “not proportionate”.

The petitioners also argued that the respondents failed to give “adequate reasons” for introducing the prohibition.

It was further claimed that the comprehensive prohibition on smoking was “direct and indirect discrimination” contrary to sections 15 and 19 of the Equality Act 2010, and that the respondents failed to carry out their duties under section 149 of that Act, and regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.

The court was told that from March 2008 the respondents allowed some smoking in the grounds of mental health hospitals until October 2015, when they introduced a comprehensive ban in the grounds of Rowanbank and Leverndale.

The ban was not confined to facilities accommodating “forensic patients” (those who, like the petitioners, are subject to compulsion orders made by a criminal court), but extended to all the mental health hospitals for which the board had responsibility.

The State Hospitals Board had already imposed a comprehensive ban on smoking, having made a decision to do so in 2011.

In affidavits to the court Mr A stated that he was aware that smoking was bad for his physical health but that he wished to be able to continue smoking because he enjoyed it, while Mr B, who had stopped smoking for a eight-and-a-half years, said he restarted because he felt that smoking helped his anxiety.

Supreme Court ruling

The UK Supreme Court considered the lawfulness of the imposition of a complete ban on smoking tobacco at the State Hospital in M v State Hospitals Board for Scotland 2017 SLT 451, in which it allowed appeal in part.

The court held that the comprehensive ban did not of itself breach the appellant’s rights under Article 8 ECHR or under Article 8 read with Article 14.

However, a prohibition on patients’ possession of tobacco products, with associated confiscations and searches, was found to be unlawful because those matters fell within the scope of the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Mental Health (Safety and Security) (Scotland) Regulations 2005.

On behalf of the petitioners,  counsel submitted that in assessing whether the respondents’ imposition of a comprehensive ban was proportionate, it was relevant to take into account that the executive and the legislature had throughout the whole development of legislation restricting the right to smoke in public places taken the view that it remained appropriate to exempt psychiatric hospitals.

‘Disproportionate and unlawful’

It was argued that the recognition of a need for psychiatric hospitals to be exempt during the passage of the Smoking, Health and Social Care Act 2005 and the Health (Tobacco, Nicotine etc and Care) (Scotland) Act 2016 indicated that the respondents’ comprehensive ban on smoking was “disproportionate and unlawful”.

In assessing proportionality, it was submitted that the court could identify the “alternative measure” which was least intrusive, which in this case was one which allowed smoking outdoors.

But counsel for the respondents referred to the duty imposed on the Scottish Ministers by section 1 of the National Health Service (Scotland) Act 1978 to promote in Scotland a comprehensive and integrated health service designed to secure (a) improvement in the physical and mental health of the people of Scotland, and (b) the prevention, diagnosis and treatment of illness, and for that purpose to secure the effective provision of services in accordance with the provisions of the Act.

Section 2A(1) imposed directly a duty on each health board to promote the improvement of the physical and mental health of the people of Scotland, while section 2A(2) provided that a health board may do anything which they consider is likely to assist in discharging that duty.

The judge accepted that the protection of the health of patients and the respondents’ staff was a “legitimate aim” and that there was a “rational connection” between the ban and that objective.

She also rejected the argument that it would be open to the court to identify the alternative measure which was least intrusive, observing that there was “no proper basis in law” for the court to embark on such a task.

Prohibition ‘in accordance with law’

In a written opinion, Lady Carmichael said: “I consider that it was within the margin of discretion open to the respondents to impose a comprehensive ban on smoking in the mental health hospitals for which they have responsibility. A partial ban on smoking would not protect patients or staff from the adverse effects of smoking as effectively as would a complete ban.”

She added: “The serious nature of the adverse effects of smoking and exposure to second-hand smoke are such that I am satisfied that the impact of the prohibition is not disproportionate to its likely benefit.”

The judge also dismissed that argument that the respondents failed to give proper reasons for its decision and that the policy breached equality law, but held that, following the decision of the Supreme Court, she was “bound to find that the prohibitions on the possession of sources of ignition are unlawful”.

Lady Carmichael concluded: “I have determined that the comprehensive ban on smoking is lawful and does not breach the petitioners’ rights. The prohibition on possession of sources of ignition is unlawful because it is not in accordance with domestic law. That conclusion results in my reducing the prohibition on sources of ignition. In those circumstances, I consider that damages are not necessary to afford just satisfaction.”

© Scottish Legal News Ltd 2021