Smokers cannot claim 'human right' to smoke, Court of Appeal decides

Smokers claiming they have a 'human right' to use tobacco have been dealt a blow by the Court of Appeal.

The court rejected arguments by patients at Rampton high security psychiatric hospital that Nottinghamshire NHS Trust breached article 8 ECHR by banning them from smoking.

Jill Weston, associate at Mills & Reeve, acted for the NHS Trust.

She said the judgment was likely to have implications for other secure environments and potentially any other places where people attempted to assert a 'human right' to smoke.

Giving judgment in R (on the application of N) v Secretary of State for Health and others and R (on the application of E) v Nottinghamshire NHS Trust [2009] EWCA Civ 795, Lord Clarke, Master of the Rolls, said in a joint judgment with Lord Justice Moses: 'Of course we accept that every activity a detained patient is free to pursue is all the more precious in a place where so many ordinary activities are precluded.

'But that does not mean that we must abandon the concept of private life which previous jurisprudence has sought to explain.

'Difficult as it is to judge the importance of smoking to the integrity of a person's identity, it is not, in our view, sufficiently close to qualify as an activity meriting the protection of article 8.'

They went on: 'There is no basis for distinguishing the loss of freedom to choose what one eats or drinks in such an institution and the ban on smoking.'

Lord Clarke and Lord Justice Moses ruled that the appeal against the secretary of state and the NHS Trust must fail and that the policy banning smoking throughout Rampton Hospital, except in exceptional cases, was lawful.

However, in a dissenting judgment, Lord Justice Keene quoted the words of Sir Toby Belch in Shakespeare's Twelfth Night: 'Dost thou think, because thou art virtuous, there shall be no more cakes and ale?'

He went on: 'To a non-smoker like myself the importance of the activity of smoking to someone who smokes regularly or who may have smoked for many years is not easy to gauge, but it is apparent that to such people it is a pastime greatly valued,' he said.

'One knows of writers and journalists who cannot write without smoking, while others seem to obtain great personal pleasure from smoking after eating or other activities. A large percentage of the adult population seems unable to work without smoking at intervals during the day.'

Lord Justice Keene said that for many people smoking formed an important part of their personal lives and possessed a value which reached a level which qualified for protection under article 8 as part of their personal autonomy.

'That protection is all the more appropriate where the activity in question is taking place in the person's home or in some other institution where he or she resides for a substantial amount of time,' he said.

Jill Weston said that the ruling meant that hospital trusts could provide smoking shelters in their grounds if they wanted to, but they were not obliged to.

Laura Pinkney, solicitor at Cartwright King in Nottingham, acted for E and other patients. She said her clients intended to pursue their appeal to the Supreme Court because they felt so strongly about the issue.

'People should make their own decisions as to whether or not they want to smoke and it is not for the state to interfere as long as they are not harming others,' she said.

Pinkney added that there was no justification for allowing prisoners to smoke in their cells but discriminating against patients at secure mental hospitals.