R(N) (on the application of) v. Secretary of State for Health, et al.

[2009] EWCA Civ 795; Case No: C1/2008/1307
Download Judgment: English
Country: United Kingdom
Region: Europe
Year: 2009
Court: Supreme Court of Judicature Court of Appeal (Civil Division)
Health Topics: Health systems and financing, Hospitals, Tobacco
Human Rights: Freedom from discrimination, Right to privacy
Tags: Health facilities, Health regulation, Passive smoking, Public hospitals, Second-hand smoke, Smoking, Tobacco control, Tobacco regulation

The appellants challenged a ban on smoking at the Rampton Hospital. The smoking ban was introduced because of a policy by Nottinghampshire Health Care NHS Trust (the Trust), which banned smoking in and outside of the hospital. The Smoke-Free (Exemption & Vehicles) Regulations 2007 (the Exemption Regulation) allowed the prohibition of smoking inside, but did not mention the outside. The Trust maintained that security reasons prevented the Trust from being able to permit patients to smoke outside.

The appellants relied upon Article 8 and 14 of the European Convention on Human Rights (“Convention”), arguing that a ban on smoking in mental hospitals was discriminatory in contrast to the allowance of smoking in prisons. Article 8 protects the right to private life and Article 14 prohibits discrimination.

The Court held that the policy was not a violation of Article 8 or 14 of the Convention.

The Court found that Article 8 and 14 do not establish the right or freedom to smoke and that there are significant differences of treatment between mental health units and prisons.

The Court found that not only was the Rampton Hospital different than a private home in that it is a public institution, but that the degree to which a person may expect freedom to do as he pleases varied according to the nature of the accommodation in which he lived. It noted that smoking was not simply a leisure activity of choice, like hunting, becauseit could become addictive. The Court referenced Bensaid v. United Kingdom (2001), which established that not all government actions which “adversely affect moral or physical integrity” interfered with the right to private life guaranteed in Article 8. The Court then went on to say that if smoking did not come within the scope of Article 8 standing, it could not come within the scope of Article 14. Appellants did not have “other status” within the meaning of Article 14 so as to protect them from discrimination as compared to prisoners.

“Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity.” Para. 45.

“We would not consider that mental illness itself confers a status, within the meaning of article 14, and any narrower definition of the status claimed for the claimants presents further problems of definition, whether the status is that of mental patient in hospital or mental patient detained in hospital. We are inclined to the view that the status claimed is not a “personal characteristic” (Kjeldsen) contemplated by article 14, especially when considered alongside the categories of status specified in article 14.” Para. 56.

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