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Carstairs smoking ban held lawful on appeal

12 August 2014

Managers of the state hospital at Carstairs were entitled to introduce a complete smoking ban on the premises, the Inner House of the Court of Session has ruled.

Lord Justice Clerk Carloway, Lady Paton and Lord Brodie overturned the decision of Lord Stewart in the Outer House (click here for report), who upheld a petition for judicial review brought by CM, a schizophrenic who had been detained in Carstairs since 1995. The petitioner challenged a decision by the hospital board, put into force in December 2011, to ban all smoking within the hospital grounds, whether indoors or outdoors.

The court rejected an argument for the board that the petitioner had delayed too long and acquiesced in the situation: although he did not consult a solicitor until several months after the decision was taken (and three months after it was implemented), he did not have the same freedom of movement to do so as someone who was not detained, and there was then a period when he was applying for legal aid. There was nothing to suggest that he or other protesters against the ban were giving up on the issue.

However the Lord Ordinary erred in holding that the principles in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 applied. The decision was a management one for the board under the NHS legislation, and not one concerning the care and treatment of individual patients. Otherwise thousands of management decisions would require individual scrutiny.

Further, while the petitioner had standing to challenge the decision as one of public law which gave him a reasonable concern, the decision was lawful and in accordance with Government policy to promote a smoke-free Scotland, which was being applied to hospitals generally. It was not for the court to go behind the board's decision that a partial ban was unworkable.

Regarding the Human Rights Convention, the petitioner's right to respect for private life under article 8 was subject to restrictions consequent on the lawful detention of patients in terms of article 5, and this decision fell within that scope. In any event a comprehensive smoking ban did not, in an institution such as the state hospital, have "a sufficiently adverse effect on a person’s physical or psychological integrity or his right to personal development as to merit protection". (Lady Paton dissented on this point but agreed with her colleagues that the ban could also bejustified in terms of the exceptions in article 8(2).) Nor was there any discrimination as the proper comparison was with hospitals rather than prisons.

The court agreed with the Lord Ordinary that a finding in the petitioner's favour would have been sufficient, without an award of damages.

Click here to view the opinions.

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