• Robert Spicer

Human Rights And Health And Safety

The first health and safety related case involving an express application of human rights law was reported in August 2009.

In R v Nottinghamshire Healthcare NHS Trust (2009), the Court of Appeal gave judgment in a case involving smoking and human rights.

The facts, in summary, were that E, a patient at Rampton high security psychiatric hospital, complained that a smoking ban introduced at the hospital, as a consequence of the NHS Trust’s policy and the Smoke Free (Exemption and Vehicles) Regulations 2007, was a breach of his rights under Article 8 of the European Convention on Human Rights.

The 2007 Regulations prohibited smoking within enclosed spaces and permitted smoking to continue in outside spaces. The NHS Trust’s policy banned smoking both inside and out, subject to very limited exceptions. The basis for this ban was that security reasons prevented the Trust from allowing patients to smoke outside.

On behalf of the claimant, it was argued that Article 8 protected a person from interference by the state with that which he chose to do within the privacy of his own home. If that was right, then the claimant’s life, detained in Rampton, could be equated to life at home.

The claim was rejected by the High Court. The claimant appealed to the Court of Appeal.

That court dismissed the appeal and made the following points:

  • The freedom protected by Article 8 was not the same as the freedom to do whatever a person chose to do.

  • Rampton was the claimant’s home, but it was not the same as a private home and the distinction was significant. It was a public institution, operated as a hospital. For safety and security reasons, supervision was intense. It was a public and not a private place.

  • Freedom from interference by the state was already significantly constricted within the confines of a secure hospital. There was no basis for distinguishing the loss of freedom in such an institution to choose what to eat or drink, and the ban on smoking.

  • Although Article 8 did apply to closed institutions, it applied to a far more limited extent than it would to activities in a person’s home.

  • Difficult as it was to judge the importance of smoking to the integrity of a person’s identity, it was not sufficiently close to qualify as an activity deserving the protection of Article 8.

  • Article 8 did not protect a right to smoke at Rampton. The prohibition did not, in such an institution, have a sufficiently adverse effect on a patient’s physical or mental integrity.

  • A policy of prohibiting smoking in the premises of an NHS Trust, which had the consequence of a ban on smoking for those detained in a high security psychiatric hospital, did not violate the patients’ human rights and was lawful.

The Health Act 2006 required, in summary, that all premises used by the public must be smoke-free by July 1, 2007. Rampton was a place of work and had to be smoke-free unless exempted by regulations. The 2007 Regulations permanently exempted prisons but only gave temporary exemption to mental health units.

Article 8 of the European Convention on Human Rights states that everyone has the right to respect for his private and family life, his home and his correspondence. It also provides that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Rampton case can be seen as an exemplar of a lengthy and expensive legal process involving individual human rights. The process failed. Again, the lawyers’ fees have not been disclosed.

In this connection, it is interesting to note that the general ban on smoking in public places does not generally apply to the House of Commons.

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