CM, Re Judicial Review  ScotCS CSOH_143 (27 August 2013)
This case concerns the judicial review of a smoking ban imposed at the State Hospital of Scotland. Relying on articles 1, 8 and 14 of the European Convention on Human Rights, the Court concluded that it was unlawful to prevent a person detained at the Hospital (a psychiatric patient) from smoking outside in the grounds of the Hospital.
The applicant was a smoker detained indefinitely in the Hospital. The Hospital is the only high security psychiatric hospital in Scotland. The hospital is managed by the State Hospitals Board (the respondent), who imposed a ban on smoking inside the hospital and in the hospital grounds. The applicant sought to have both bans set aside. The applicant also claimed damages of £3,000.
The petition came before the Scottish Court of Session, which determined that the petition should be granted, in part, because it found that the applicant's rights had been breached. Interestingly though, the Court did not award the applicant damages because he was said to have saved approximately £8,000 since the ban took effect (the applicant had a 40-a-day habit).
The applicant asked the Court to declare that the respondent's smoking ban was unlawful and that the respondent's policy breached his human rights, specifically:
- article 8 (right to respect for private and home life);
- article 14 (enjoyment of Convention rights without discrimination); and
- article 1 (right not to be deprived of property).
The Court said that the lawfulness of the ban turned on the source of the respondent’s power to impose it.
The Court turned its attention to the Mental Health (Care and Treatment) (Scotland) Act 2003. Lord Stewart found that the Act gave the respondents the power to detain patients and that when the respondents did anything incidental to detention, such as addressing smoking, then by implication, they were discharging a function under the Act. However, section 1 of the Act required that any compulsory intervention be tailored to the particular needs and circumstances of the individual and undertaken in the least restrictive manner possible.
Lord Stewart said that it was a perfectly reasonable proposition, given contemporary understanding about the effects of smoking, that patients inside a hospital should not be permitted to smoke. He made it clear that there is "no right to smoke" in a legal sense. However, he noted that the State cannot interfere with a person's choices in the private sphere in the absence of weighty reasons to do, such as the good of the community as a whole. His Honour added that individuals are entitled to make their own choices about smoking.
Against that backdrop, Lord Stewart held that the decision to prohibit the applicant smoking in the grounds of the Hospital (as distinct from inside the Hospital) constituted an interference with the applicant's article 8 rights (right to respect for private life) and was unlawful because:
- it was not made in accordance with the principles in section 1 of the Act, i.e. the compulsory intervention was not tailored to the particular needs and circumstances of the applicant and was not undertaken in the least restrictive manner possible; and
- because it went further than was necessary to achieve the legitimate aim in question, which was to protect third parties from the applicant's cigarette smoke.
Lord Stewart also found that the decision breached article 14 (enjoyment of convention rights without discrimination). His Honour held that the relevant comparators were long-term prisoners who were allowed to smoke. He found that the only justification for imposing a smoking ban on mental health detainees and not on long-term prisoners was because of their vulnerability and as such, this amounted to discrimination.
The decision in CM, Re Judicial Review is very timely for Australia given the on-going debate here about smoking and the legislative and policy attempts to curtail its prevalence.
As explained by Lord Stewart, the central issue is not whether article 8 (right to respect for private life) was engaged, but whether interference can be justified as lawful, necessary and proportionate. The Court noted that article 8(2) authorises interventions which are necessary in a democratic society for the protection of health and morals, but it does not authorise "lifestyle fascism".
The Victorian Charter contains similar rights protections, including:
- the right to not to have privacy or home unlawfully or arbitrarily interfered with (section 13);
- the right of a person deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person (section 22(1)); and
- the right to enjoy human rights without discrimination (section 8(2)).
Similarly to the ECHR, however, Charter rights can be subject to such reasonable and proportionate limits as can be demonstrably justified in a free and democratic society.
This decision is available online at: http://www.bailii.org/scot/cases/ScotCS/2013/2013CSOH143.html
Shironi De Silva is a lawyer at DLA Piper and Jessica Courtney is a graduate at DLA Piper.
Readers may be interested to note that in recent years questions as to the human-rights compatibility of hospital smoking policies have also been considered by:
- the New Zealand High Court – see B v Waitemata District Health Board  NZHC 1702 (8 July 2013) (case note at: http://www.hrlc.org.au/smoke-free-hospital-policy-upheld-by-the-new-zealand-high-court); and
- the House of Lords – see N, R (on the application of) v Secretary of State for Health  EWCA Civ 795 (24 July 2009) (case note at: http://www.hrlc.org.au/n-r-on-the-application-of-v-secretary-of-state-for-health-2009-ewca-civ-795-24-july-2009).