West Law Report

R (G) v NOTTINGHAMSHIRE HEALTHCARE NHS TRUST: R (N) v SECRETARY OF STATE FOR HEALTH: R (B) v NOTTINGHAMSHIRE HEALTHCARE NHS TRUST

Last Updated: 3:25PM BST 04/06/2008
Queen’s Bench Division (Admin) Pill LJ, Silber J May 20, 2008
Discrimination – Mental hospitals – Mental patients – Proportionality – Right to respect for private and family life – Smoking – Detained mental patients – Ban on smoking in mental health units – Interference with art. 8 rights – art. 14 European Convention on Human Rights 1950 – s. 3(2) Health Act 2006 – Art. 8 European Convention on Human Rights – Health Act 2006 – Reg. 10 Smoke-free (Exemptions and Vehicles) Regulations 2007 – Reg. 10(3) Smoke-Free (Exemptions and Vehicles) Regulations 2007

FACTS

The applicant patients (P) applied to quash the Smoke-free (Exemptions and Vehicles) Regulations 2007 reg. 10(3) as being incompatible with their rights under the European Convention on Human Rights 1950 art. 8. P were mental-health patients detained at a high security psychiatric hospital. P were not permitted to leave the building in order to smoke. The Health Act 2006 made provision for the prohibition on smoking in enclosed or substantially enclosed premises from July 1, 2008. Reg. 10 provided a temporary exemption for mental health units so that where it was not feasible to permit smoking outside a designated room could be used for smoking. Reg. 10(3) provided that the exemption would cease to have effect from July 1. P considered that as they were long-term detainees the hospital should be regarded as their home and that under the Health Act 2006 s. 3(2) homes were exempted from the requirement to be smoke free. The defendant Trust had introduced a smoke-free policy that allowed for flexibility only in exceptional circumstances. P submitted that the termination of the exemption for mental health units under reg. 10(3) was unlawful because it failed to respect their art. 8 rights, either directly or by reason of discrimination against them within the meaning of art. 14, and that a more proportionate measure would have allowed the reg. 10 exemption to continue permanently.

ISSUE

Whether the termination of the exemption for mental health units under reg. 10(3) was unlawful because it failed to respect P’s art. 8 rights, either directly or by reason of discrimination against P within the meaning of art. 14.

HELD (application refused)

(1) There was no notion of an absolute right to smoke wherever a person was living. The privacy and freedom of action to which a person was entitled for the purposes of art. 8 would vary with the nature of the accommodation in which that person was living. The requirement to respect private and home life in art. 8 did not impose a general obligation on those responsible for the care of detained people to make arrangements to enable them to smoke. The question as to whether P would have a “status” within the meaning of art.14 did not therefore arise. The exemptions under the 2007 Regulations could be granted without creating a breach of art. 8. There could be cases, although rare, in which the protection of mental health required that facilities to smoke should be made available.

(2) The legislative objectives of reg. 10 and the Trust’s policy which included protecting the rights of citizens to enjoy smoke-free air, reducing the levels of exposure to second-hand smoking and increasing the number of smoke-free enclosed public places and work places were sufficiently important to justify limiting any rights that P had under art. 8. In view of the evidence, substantial health benefits would arise from the ban and the disbenefits were insubstantial. Both health and security considerations justified the ban even though smoking in the grounds, which might have been possible at other hospitals, was not feasible in P’s case. The exemption in reg. 10 was plainly intended to be temporary and could not be read as conferring a permanent or longer term exemption.

Paul Bowen (instructed by Cartwright King) for the applicants G. Paul Bowen (instructed by Scott-Moncrieff Harbour & Sinclair) for the applicant N. Hugh Southey (instructed by Roberts Moore Nicholas Jones) for the applicant B. David Lock and Nageena Khalique (instructed by Mills & Reeve) for the respondent Nottinghamshire Healthcare NHS Trust. Jonathan Swift and Karen Steyn (instructed by in-house Solicitor) for the respondent Secretary of State.

Smoking is not a human right protected by law

From The TimesMay 28, 2008

Smoking is not a human right protected by law
Regina (G) v Nottingham Healthcare NHS Trust Regina (N) v Secretary of State for Health Regina (B) v Nottingham Healthcare NHS Trust in the Queen’s Bench Divisional Court
Queen’s Bench Divisional Court

Published May 28, 2008

Regina (G) v Nottingham Healthcare NHS Trust Regina (N) v Secretary of State for Health Regina (B) v Nottingham Healthcare NHS Trust

Before Lord Justice Pill and Mr Justice Silber Judgment May 20, 2008

Preventing detained mental patients from smoking was not a breach of article 8, right to respect for private and family life, or article 14, prohibiting discrimination, of the European Convention on Human Rights.

The Queen’s Bench Divisional Court so held when dismissing claims for judicial review by the claimants, G and B, against the Nottinghamshire Healthcare NHS Trust and by N against the Secretary of State for Health, by which they applied to quash regulation 10(3) of the Smoke-free (Exemption and Vehicles) Regulations (SI 2007 No 765) as being incompatible with their rights under the Convention.

Alternatively, they sought a declaration that regulation 10(3) was unlawful for introducing only a partial, rather than a complete exemption in relation to mental health units, from the requirement in the Health Act 2006 that all premises used by the public be smoke-free by July 1, 2008.

In the further alternative, they claimed that the regulation should be read and given effect under section 3 of the Human Rights Act 1998 by reading into it the words “except in mental health units where it is not feasible to permit patients to smoke outdoors”.

Mr Paul Bowen for G and N; Mr Hugh Southey for B; Mr David Lock and Ms Nageena Khalique for the NHS Trust; Mr Jonathan Swift and Miss Karen Steyn for the Health Secretary.

LORD JUSTICE PILL, giving the judgment of the court, said that the claimants either were, or had been detained at Rampton Hospital, a high security psychiatric hospital managed by the Nottinghamshire Healthcare NHS Trust.

Section 1 of the 2006 Act made provision for the prohibition of smoking in certain premises, places and vehicles. Some exemptions were granted by Part 2 of the 2007 Regulations. Regulation 10 provided for temporary exemption for mental health units and regulation 10(3) provided that the exemption would cease to have effect on July 1, 2008.

It was not possible to read the words “except in mental health units where it is not feasible to permit patients to smoke outdoors” into regulation 10(3) of the 2007 Regulations without the court performing a legislative as distinct from an interpretative act.

Preventing a person smoking did not generally involve such adverse effect upon his physical or moral integrity as would amount to an interference with the right to respect for private or home life within the meaning of article 8. There was not an absolute right, subject to article 8.2 to smoke wherever one was living. References to the “ambit” or “scope” of article 8 did not introduce, via article 14, an application of article 8.

On that view, the question whether the claimants had “other status” within the meaning of article 14 did not arise. The status relied on was that of detained patients in high security mental hospitals.

Mental illess did not itself confer a status, and a narrower definition of the status as a mental patient detained in hospital presented further problems of definition. That status was not a personal characteristic contemplated by article 14.

If, contrary to the conclusion above, the claimants’ article 8 rights were engaged, either directly or read with article 14, health considerations, security considerations and the procedure adopted for scrutinising the regulations supported the conclusion that the measures taken were proportionate.

Solicitors: Scott-Moncrieff Harbour & Sinclair; Roberts Moore Nicholas Jones, Birkenhead; Mills & Reeve, Birmingham; Solicitor, Department of Health.

No discrimination for tax

From The TimesMay 7, 2008

No discrimination for tax
Burden and Another v United Kingdom (Application No 13378/05) in the European Court of Human Rights
European Court of Human Rights

Published May 7, 2008

Burden and Another v United Kingdom (Application No 13378/05)

Before J.-P. Costa, President and Judges Sir Nicolas Bratza, B. M. Zupancic, F. Tulkens, R. Türmen, C. Bîrsan, N. Vajic, M. Tsatsa-Nikolovska, A. Baka, M. Ugrekhelidze, A. Kovler, E. Steiner, J. Borrego Borrego, E. Myjer, D. Thór Björgvinsson, I. Ziemele and I. Berro-Lefèvre Jurisconsult V. Berger

Judgment April 29, 2008

Sisters who shared a house could not be compared to a couple united by law so as to invoke provisions prohibiting discrimination.

The Grand Chamber of the European Court of Human Rights so held, by 15 votes to 2, finding that there had been no violation of article 14, prohibiting discrimination, of the European Convention on Human Rights taken in conjunction with article 1 of Protocol No 1, protecting property rights.

The case concerned two British nationals, Joyce and Sybil Burden, born in 1918 and 1925 respectively, unmarried sisters who lived in Marlborough.

The applicants had lived together all their lives; for the last 30 years in a house built on land they inherited from their parents. Each had made a will leaving all her property to the other. The sisters, both in their eighties, were concerned that, when one of them died, the other would be forced to sell the house to pay inheritance tax.

Property passing from the deceased to a spouse or civil partner, a category introduced under the Civil Partnership Act 2004 for same-sex couples, was exempt from the charge.

The Court held in a chamber judgment (The Times January 19, 2007), by four votes to three, that there had been no violation of article 14 taken in conjunction with article 1 of Protocol No 1. On March 8, 2007, the applicants requested that the case be referred to the Grand Chamber.

The Grand Chamber concluded, by 15 votes to 2, with Judges Zupancic and Borrego Borrego dissenting, that the applicants, as cohabiting sisters, could not be compared for the purposes of article 14 to a married or Civil Partnership Act couple.

It followed that there had been no discrimination and, therefore, no violation of article 14 taken in conjunction with article 1 of Protocol No 1.