Saturday, 7 May 2011

Prisoners in private mental health facility may bring legal challenge to smoking ban

Inmates at a privately run secure hospital have been given permission to challenge a smoking ban, which covers the buildings and grounds of Chadwick Lodge Hospital in Milton Keynes.

A smoking ban covers indoor psychiatric facilities in England. In common with other inmates of secure units patients at Chadwick House may not get outdoors without an escort. Even if they do get out, they may not smoke. In granting permission to the patients for a judicial review, Lord Justice Silber acknowledged the importance of this issue.

A spokesperson for Chadwick Lodge referred to the Rampton Judgement, a similar judicial review of a smoking ban at Rampton Hospital, passed in 2009.  One judge in this case, Mr Justice Keene, dissented from the view held by the court and his views are laid out in the judgement from paragraph 92. At para 108, he says:
I readily acknowledge that, in assessing proportionality in a matter like this, weight has to be attached to the position endorsed by the democratically-elected body.  However, nothing put before this court demonstrates that Parliament ever appreciated that in reality the consequence of Regulation 10(3), the time-limit on exemption for mental health units, was likely to be a complete or virtually complete ban on smoking for those detained in secure mental hospitals.  There was no debate on the merits of such an outcome, which means that there has been no democratic endorsement of it.  
He continues (referring to Regulation 10, the exemption of psychiatric units from the smoking ban that expired one year after the smoking ban was introduced in 2007):
it seems to me that the prohibition in England on smoking in institutions like Rampton, a prohibition which results from the cessation of the exemption in Regulation 10 plus the security considerations applicable there, is more than is necessary to accomplish the public health objective of protecting people against second-hand smoke.  It is therefore disproportionate, and there is a breach of Article 8.
He is quite correct that blanket bans on smoking have been forced, on people who have no freedom of movement,  without any democratic endorsement, and that this was not necessary in achieving the public health objectives of the smoking ban.  There are of course many more arguments on both sides, but this seems fundamental.  Smoking bans have failed among the wider public too. It seems distasteful to force a smoking ban on someone just because you can: just because the courts have awarded you custody over this person for treatment purposes – even though the treatment s/he is receiving is not smoking-related. (The same argument applies to those people who want to criminalise smoking in apartment blocks, when they wouldn't attempt it on someone with a large house and private garden. It actually looks like victimisation.)

Since Mr Justice Keane wrote these words we know more about the difficulties in enforcing bans. We reported recently how many hospitals, having failed in their attempt to outlaw smoking on NHS premises, are rebuilding smoking shelters. People who smoke at hospitals may be visitors, patients or staff. Patients may be temporarily immobilised by being hospitalised but in general most of these people have much more freedom of movement than someone who has been held in a secure unit for any length of time.

It is also possible that smoking bans can adversely affect treatments of other kinds. People undergoing drug rehabilitation are another group of people that have more freedom of movement than people in secure units. This article reports that they are voting with their feet and not completing their programmes following the introduction of no-smoking policies.

Health authorities should consider not whether they want everyone to stop smoking but whether it is feasible to stop people from smoking, and especially whether it is fair to deprive people of nicotine in situations where, for their safety or that of the public, they can't just walk away.


Anonymous said...

The Rampton case was brought against the NHS PCT and not the UK Government and this was the reason that the case failed. As far as I remember the ruling stated that the PCT could not make changes to the law and allow smoking even if they wanted to.

I hope this new challenge is aimed at the Government.

Belinda said...

The Secretary of State for Health was one of the respondents in the Rampton case as well. I think you are right that the Trust's case was more at issue in the judgement, except perhaps in Keene's interpretation.

So, yes, challenge the government not the Trust. Except ... this prison is privately run. The government can't be held responsible for the prison's overall policy (regulating outdoor smoking) - at the very least it will have a clear case for denying responsibility.