N, R (on the application of) v Secretary of State for Health  EWCA Civ 795 (24 July 2009) The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was lawful. Specifically the Court held that art 8 of the European Convention of Human Rights does not protect the right to smoke.
Under the Mental Health Act 2006 all premises used by the public were to be ‘smoke-free’ from 1 July 2007. Following on from this statutory ban on smoking inside public premises, the Nottinghamshire Healthcare NHS Trust issued a policy banning smoking at Rampton, a high security psychiatric hospital. The policy prohibits smoking for both staff and patients throughout the premises of the hospital.
Regulation 10 of the Smoke-Free (Exemption and Vehicles) Regulations 2007 (‘Exemption Regulations’) provided a temporary exemption from the smoking ban under the Mental Health Act 2006 which provided for mental health units to have a designated room for smoking. The temporary exemption ceased to have effect on 1 July 2008. Regulation 5 provides a similar exemption for other residential accommodation including prisons, the critical difference being there is no time limitation.
The appellants (who were patients at Rampton) alleged the Trust’s policy and the Exemption Regulations unlawfully infringed their rights under art 8 and/or art 14 of the European Convention. The appellants further alleged that it was discriminatory to only have a temporary exemption for mental health units when contrasted with the exemption for prisons which was unlimited in time.
Articles 8 and 14 of the European Convention provide as follows:
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.
Lord Clarke, Master of the Rolls, delivered a joint judgment with Lord Justice Moses (Keene LJ dissenting). The Court firstly considered the nature of the place in which the appellants sought to exert their right to smoke. While it was accepted that the hospital was a patients’ home it was not considered to be their private home, and the distinction was significant. The Court stated, at , 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 and always overlooked.’ The Court went on to draw a comparison between the ban on smoking and restrictions on food and drink in psychiatric institutions. The Court held there was no basis upon which to distinguish the loss of freedom in both situations. While accepting a patients' private life must not be eroded completely, it was held that the protection afforded by art 8 of the European Convention is confined by the restricted nature of a patients’ life within a secure hospital.
The Court then went on to consider the nature of the activity and its proximity to a persons identity or physical and moral integrity. The Court stated, at : ‘difficult as it is to judge the importance of smoking to the integrity of a person’s identity, it is not, in our view sufficiently close to qualify as an activity meriting the protection of art 8’. Accordingly, it was held that art 8 does not protect a right to smoke in Rampton and that a prohibition on smoking in such institutions does not have a sufficiently adverse effect on physical or moral integrity.
In relation to the appellant’s argument that the Exemption Regulations were discriminatory, the Court considered the differential treatment between those in mental health units like Rampton and those in prisons to be justified. Amongst the several reasons provided by the Court (see paras -), the difference in the nature of the care provided in each institution was considered to be a legitimate basis for the distinction.
Relevance to the Victorian Charter
Smoking in Victoria has been banned in enclosed workplaces and public areas. While most hospitals do not have a policy prohibiting smoking throughout their premises, such a proposal in the future does not seem unlikely. This case is likely to be persuasive in opposing any challenge to the validity of such legislation and policy.
More generally, this case has direct relevance for the interpretation of ss 13 and 8 of the Victorian Charter which are similar to arts 8 and 14 of the European Convention respectively. The findings regarding the restricted rights of patients under state care may be instructive in the interpretation of s 7 of the Victorian Charter which sets out circumstances when human rights may be limited.
The decision is available at www.bailii.org/ew/cases/EWCA/Civ/2009/795.html.
Prabha Nandagopal is on secondment to the Centre from DLA Phillips Fox