Wednesday, 28 August 2013

Patient wins smoking challenge at State Hospital Carstairs

This is today's good news. A patient at The State Hospital has won a ruling that his human rights were breached when he was prevented from smoking while an inmate there.

I think the result would have been better. For example, the judge, Lord Stewart, said that the plaintiff had saved a lot of money by not smoking, and therefore did not award him damages. He also did not criticise the principle behind the ban, although it is hard not to see that many others would have been detrimentally affected in the same way as the plaintiff. And he said:

"I also want to make clear that I am not endorsing the idea of a human right to smoke. There is no right to smoke in a legal sense."

No, if you think there should be an act detailing everything you are legally entitled to do. The presumption is usually that you can do things, not that you have to be awarded the right to do things.

But on the plus side:

Lord Stewart noted that if Mr McCann was a prisoner, he would be allowed to smoke in jail.

The judge said: "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 better position to defend their smoking habit whereas the former are not.

The judge added: "On the information available, I have come to the view, though with reluctance, that the decision to compel the petitioner to stop smoking was flawed in every possible way."

Lord Stewart said the decision should have been made with reference to principles set out in mental health legislation but was not.

He points out, in other words, that mental health detainees are 'picked on' in terms of legislation preventing them from smoking, because they are soft targets, and that those making decisions about the plaintiff's smoking had gone beyond the law.

In case anyone out there is still under the illusion that smoking restrictions are motivated by health concerns, this story should disabuse you.


Anonymous said...

Confusing comments from Lord Stewart. He says, "it would be wrong to strike down the board's decision to go "comprehensive smoke-free".even though "the decision to compel the petitioner to stop smoking was flawed in every possible way."

His remark about the time being right to push for a change in national law is worrying. Will his comments be used to justify a law against smoking outdoors? In the name their beloved 'level playing field' of course.

It's a tiny, mealy-mouthed step in the right dirction, but the leg is still heavily mannacled.

Anonymous said...

Something else the judge said: he must have gained significant health benefits from not smoking.

How the hell does he know? We've had total smoking bans in mental health prisons here in England since 2008, and have still to hear about the general health of their patients. You'd have thought all those 'significant health benefits' would be advertised all over the place.

Physically, there's no difference between mental health patients and the rest of society, so why are we not being told ad nauseum about how disease-free and physically fit these patients are?

The truth is that they are not. Obesity is now a huge (ha ha) problem. Money is being ploughed into Rampton to combat a problem that didn't exist five years ago.

Perhaps we aren't hearing about the benefits to health of enforced non-smoking because there aren't any worth mentioning?

Junican said...

I thought that you might like this from the actual 'Opinion':

[10] Persons liable to be detained in the State Hospital include patients who have entered from the criminal justice system like the petitioner, subject to orders for compulsory treatment with restriction orders, or subject to orders for compulsory treatment without restriction orders, or subject to interim compulsion orders; and also non‑criminal justice patients on orders for compulsory treatment and adults with incapacity. None of them is allowed to smoke. The petitioner is particularly aggrieved because, although he is among those patients who are allowed unsupervised grounds access during daylight hours, he is not permitted to smoke in the State Hospital grounds either. Even beyond the hospital grounds, when he is on escorted visits, the respondents' policy prevents the petitioner from smoking; and were he to visit family, he would not be permitted to smoke in the family home and visits would be conditional on no smoking by members of the household for "at least" one hour before the petitioner's visit [6/1 "Working towards a smoke‑free environment: an account of the journey undertaken by The State Hospital" (The State Hospital/NHS Scotland, February 2012), 7].

Thus, the 'purity' of the experiment would be preserved.

Belinda said...

Thanks Junican, I wasn't aware that smoking restrictions extended to his own home and members of his family! I'll need to read some more.