Queen’s Bench Divisional Court

Published May 28, 2008

Regina (G) v Nottingham Healthcare NHS Trust Regina (N) v Secretary of State for Health Regina (B) v Nottingham Healthcare NHS Trust

Before Lord Justice Pill and Mr Justice Silber Judgment May 20, 2008

Preventing detained mental patients from smoking was not a breach of article 8, right to respect for private and family life, or article 14, prohibiting discrimination, of the European Convention on Human Rights.

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 they applied to quash regulation 10(3) of the Smoke-free (Exemption and Vehicles) Regulations (SI 2007 No 765) as being incompatible with their rights under the Convention.

Alternatively, they sought a declaration that regulation 10(3) was unlawful for introducing only a partial, rather than a complete exemption in relation to mental health units, from the requirement in the Health Act 2006 that all premises used by the public be smoke-free by July 1, 2008.

In the further alternative, they claimed that the regulation should be read and given effect under section 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”.

Mr Paul Bowen for G and N; Mr Hugh Southey for B; Mr David Lock and Ms Nageena Khalique for the NHS Trust; Mr Jonathan Swift and Miss Karen Steyn for the Health Secretary.

LORD JUSTICE PILL, 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.

Section 1 of the 2006 Act made provision for the prohibition of smoking in certain premises, places and vehicles. Some exemptions were granted by Part 2 of the 2007 Regulations. Regulation 10 provided for temporary exemption for mental health units and regulation 10(3) provided that the exemption would cease to have effect on July 1, 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 regulation 10(3) of the 2007 Regulations without the court performing a legislative as distinct from an interpretative act.

Preventing a person smoking did not generally involve such adverse effect upon his physical or moral integrity as would amount to an interference with the right to respect for private or home life within the meaning of article 8. There was not an absolute right, subject to article 8.2 to smoke wherever one was living. References to the “ambit” or “scope” of article 8 did not introduce, via article 14, an application of article 8.

On that view, the question whether the claimants had “other status” within the meaning of article 14 did not arise. The status relied on was that of detained patients in high security mental hospitals.

Mental illess did not itself confer a status, and a narrower definition of the status as a mental patient detained in hospital presented further problems of definition. That status was not a personal characteristic contemplated by article 14.

If, contrary to the conclusion above, the claimants’ article 8 rights were engaged, either directly or read with article 14, health considerations, security considerations and the procedure adopted for scrutinising the regulations supported the conclusion that the measures taken were proportionate.

Solicitors: Cartwright King, Nottingham; Scott-Moncrieff Harbour & Sinclair; Roberts Moore Nicholas Jones, Birkenhead; Mills & Reeve, Birmingham; Solicitor, Department of Health.

Times Recommends

• Legal school 'earned £1m by exploiting bar course'
• Axe may fall on 5,000 more City lawyers
• Prince Charles named in £81m court battle