Carstairs patient wins smoking ban court challenge
A patient at the State Hospital at Carstairs has won a court ruling that a blanket ban on smoking at the facility breached his human rights.
Charles McCann challenged the ban at the Court of Session in Edinburgh after it was introduced in December 2011.
Judge Lord Stewart said the decision to compel Mr McCann "to stop smoking was flawed in every possible way".
He rejected claims for damages, saying the ban brought health benefits and would have saved Mr McCann cash.
Mr McCann, who sufferers from schizophrenia, has been detained for 18 years since a sheriff made a mental health disposal in his case after he was charged with offences such as breach of the peace and police assault.
When the smoking ban was introduced, he objected to management at Carstairs prohibiting the possession of tobacco products and smoking not just inside the hospital but also in its grounds.
The court heard that Mr McCann was allowed unescorted access during daylight hours in the grounds.
Mr McCann maintained that the authorities at the hospital ought to have assessed his situation individually and his circumstances made it unlawful to ban him lighting up in the grounds of the hospital.
Lord Stewart said he was prepared to make a restricted declaration that the policy was unlawful as affects the patient and that it was a breach of his rights under the European Convention on Human Rights (EHCR).
The judge said he had decided it would be wrong to strike down the board's decision to go "comprehensive smoke-free".
He said he was allowing the application "with a degree of reluctance" and added: "It is a perfectly reasonable proposition, given contemporary understanding about the effects of tobacco smoking, that patients in a hospital should not be permitted to smoke.
"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."
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 said the hospital authorities did not take account of the patient's wishes or provide him with with the requisite information.
The judge said the hospital authorities had also failed to show an "objective and reasonable justification" for treating him differently from adult, long-term prisoners who can smoke if they want.
Lord Stewart added: "Reading between the lines, I infer that Scotland does not have a complete statutory prohibition on smoking in the buildings and grounds of psychiatric hospitals in general and of the State Hospital in particular because the government could not, at the time, gather the requisite consensus for such a ban.
"If the legislature will not support a measure it is wrong to enforce it by extra-statutory means.
"It may be of course, given the experience at the State Hospital, that the time is now right to try and put the ban on a statutory footing."
The judge said he agreed with a submission that it was not appropriate to award damages of £3,000 in the case.
He said: "I have no difficulty with the idea that the petitioner has been deprived of one of his few pleasures, that he dwells on his inability to smoke, that he feels frustrated and aggrieved and so on.
"On the other hand, the unequivocal effect of all the information put before me is that he must have gained significant health benefits from not smoking.
"He must also have saved a lot of money. He claims to have, or to have had, a 40-a-day habit so that, on the figures suggested by counsel, he must have saved about £8,000 since the smoking ban came into effect."
The judge said the orders that he would make would allow the patient's case to be reconsidered by the hospital authorities.
He added: "If he still wants to smoke in the hospital grounds, it may be, for all I know, that he will be allowed to do so."