Health protection “not a warrant for lifestyle fascism”

by Rosalind English

CM, Re Judicial Review [2013] CSOH 143 – read judgment

The Scottish Court of Session has ruled that the prohibition of smoking and possession of tobacco products by patients at a mental hospital was unlawful. Whilst being careful to emphasise that this ruling did not spell out a specific right to smoke, the Court considered that the ban infringed the patients’ right to respect for home under Article 8.

The petitioner, a patient in a high security psychiatric hospital, sought judicial review of the policy adopted by the State Hospitals Board to ban smoking not just inside the hospital but also in the hospital grounds. He claimed that the ban amounted to a breach of his right to respect for private life and home under Article 8, both as a stand‑alone claim and in combination with Article 14 (enjoyment of Convention rights without discrimination). He also argued that the ban constituted an unlawful and discriminatory infringement of his right to peaceful enjoyment of possessions under Article 1 Protocol 1.

The petitioner further based his position on compassionate grounds, pointing out that there are few diversions available in the State Hospital; that he derived pleasure from smoking; and that as an individual with relatively few liberties the removal of his ability to smoke had had a disproportionately large impact on him.

The respondents countered that cigarette smoking was not an activity that attracted the protection of the Convention, and that even if it did, the smoking ban was a necessary and proportionate response in pursuit of a legitimate health aim.

The Court upheld the petitioner’s claim under Article 8, declaring the policy unlawful. The ban could not be justified as a legitimate response to the need to protect other patients from the petitioner’s cigarette smoke. In fact Lord Stewart went as far as to say that he viewed the decision to compel the petitioner to stop smoking as “flawed in every possible way”.

Implications of this ruling

Lord Stewart was at pains to make it clear that he was not endorsing the idea of a “human right to smoke”: there was, he said, no “right to smoke” in a legal sense. As such, this ruling should not be taken to endorse the smoking tendencies of future patients who are admitted to the State hospital in future. The human rights issue was “about the petitioner’s human rights and no one else’s.”

Despite this caveat, it is difficult to see how this judgement can be so confined to its particular facts. For a start, the court found that the legislative basis for the ban was the Mental Health (Care and Treatment)(Scotland) Act 2003. This Act gives effect to the principle that “any use of compulsion under mental health law represents a significant curtailment of the rights of the patient, and should only be permitted when it is absolutely necessary.” As such, the respondents had acted outside the powers granted to them by the Act.

Lord Stewart expressed his puzzlement that the ban had not been imposed under Scottish regulations that specifically address the issue of State Hospital patients having in their possession articles “that would pose a significant risk to the health, safety or welfare of any person in the hospital or the security or good order of the hospital” and to authorise the removal from patients of prohibited articles. Given this seemingly clear power to treat tobacco products as contraband for health reasons, why did the respondents purport to have acted under this regulation? They would have rendered the ban challenge-proof had they done so. Could it be that smoking, Lord Stewart subversively suggests, is not after all a “significant health risk” (at least in the way it was previously managed in the State Hospital)?

Smoking: a protected activity under Article 8?

A similar challenge under the Convention was rejected by a majority ruling in the Court of Appeal in R (N) v Secretary of State for Health and Nottinghamshire Health Care NHS Trust [2009] HRLR 31. Here, the patients contended that the hospital was to be regarded as their “home” for the purpose of Article 8 ECHR; that smoking was an activity protected by the Article 8 guarantee; that the total ban on smoking indoors was unnecessary and disproportionate in terms of Article 8 ECHR and therefore unlawful.

The Court of Appeal was divided on the question of whether the Rampton smoking ban engaged Article 8. The majority held that whether or not an activity attracted Article 8 protection was a function of the nature of the place in which the activity is carried out in combination with the importance of the activity to the “physical and moral integrity” of the individual, and that smoking by patients in a high security mental hospital was not protected. But Lord Stewart had reservations about this approach. Surely the question in such a case was not whether Article 8 was engaged but whether interference could be justified. He had difficulty with the proposition that the Rampton smoking ban was justifiable by reference to the hospital trust’s common law duty to prevent their patients from self-harm. There may be such a common law duty, but we have to bear in mind the autonomy of the individual; as the Strasbourg court has observed in the case of Pretty:

… the ability to conduct one’s life in a manner of one’s own choosing may also include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned”. Article 8(2) ECHR authorises interventions which are “necessary in a democratic society… for the protection of health or morals: it is not a warrant for lifestyle fascism [52] Statute law and national policy … recognise smoking as an activity belonging to the private sphere, a sphere from which the state and state agents are excluded. Individuals are entitled to make their own choices about smoking, provided there is no harm to others. Law and policy also recognise that it is inappropriate to insist on the full rigour of prohibition where individuals are compelled to reside, by circumstances or by force of law, in otherwise smoke‑free premises. [119]

There was no justification for this wholesale ban under Article 8. In so far as there was a legitimate aim which has animated the state’s interference with the “right to smoke”, this has been to protect others against second-hand smoke, not to stop smokers smoking. Accordingly, where individuals who smoke are compelled by circumstances or by law to reside long‑term in otherwise no‑smoking premises then the state has always treated such premises as their home, as it should do, thus allowing them to smoke in a controlled way.

The discriminatory impact of the smoking ban

Lord Stewart agreed that there was a difference in the treatment of high security patients as compared with long-term prisoners in Scotland; and that, as counsel for the petitioner submitted under reference to the Strasbourg case law and to R (N), that the difference is on the ground of “other status” within the meaning of Article 14. This difference in treatment is justified by nothing more than expediency. He observed that the government had been noticeably cautious about banning smoking in prisons and has no immediate plans to do so because, he assumed, of anxiety about the possibility of disorder:

It may not be attractive to contemplate but I infer that the smoke‑free policy has been imposed on mental health detainees and not on penal detainees simply because the latter are in a position to defend their smoking habit whereas the former are not. … on the material presented to me and in the absence of any other suggestion, it appears that the only justification for imposing a smoking ban on mental health detainees like the petitioner and not on penal detainees is that it is feasible to compel mental health detainees to stop smoking because of their vulnerability. This is not a legitimate justification. [126]

The petitioner’s claim under Article 1 Protocol 1 was dismissed as irrelevant, as there were no cigarettes to confiscate, therefore no “possessions” to engage that provision.

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