Is there a human right to smoke in your own home? That was essentially the question the High Court was asked to answer this month in a case brought by high-security mental health patients at Rampton hospital.

As everyone now knows, a wide-scale smoking ban in public is in force, introduced by the Health Act 2006. However, there were also regulations that introduced exemptions in certain areas. The private rooms of patients at Rampton are excluded until July 1 this year. After that the NHS has decided to introduce a total ban at the hospital. Other high-security hospitals have already introduced a total ban.

The claimants in the case relied on ministerial statements that it was not the intention of the Government to prevent people from smoking in their own homes. It was argued that as the average stay of a patient at Rampton is more than eight years, it was right to see the hospital as the home of patients. The court was prepared to accept the argument. However, that was just about all that the court did accept.

The claimants had to show that their right to respect for private life and home was being interfered with by the ban, so as to bring them within article 8 of the European Convention of Human Rights. The court accepted that the scope of the right in article 8 is a wide and diffuse one and difficult to define. However, the judges said that they were not persuaded that article 8 “imposes a general obligation on those responsible for the care of detained people to make arrangements enabling them to smoke”.

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They went on to say that “whether it is put in terms of moral integrity, identity or personal autonomy, no general right for mental patients to smoke, or general obligation to permit smoking, arises”.

That was really the end of the argument, but the court went on to consider other aspects of the case as well. There was no convincing evidence presented to suggest that giving up smoking would worsen the condition of mental patients. The policy of banning smoking for general health reasons was a legitimate one for the Government and the health service to pursue. Arguments about the sanctity of personal liberty based on the philosophy of J.S. Mill were rejected. It was also noted that prisoners will continue to be entitled to smoke in prisons, but the court was doubtful as to whether the claimants could say that they were being discriminated against on the basis of their status as detained mental patients.

So it looks as though the patients at Rampton will be stubbing out at the end of next month. However, an appeal is planned with hopes that the Court of Appeal will be able to consider the case before the total ban comes into place.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers. s.cragg@doughtystreet.co.uk

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