Our challenge to the smoking ban at Ashworth Hospital – permission application listed
We are currently representing a long term client in relation to a challenge (in the form of a judicial review application) to the total ban on smoking by patients anywhere on the premises or in the grounds at Ashworth High Security Hospital on Merseyside. Whilst our initial application in March 2014 was refused permission on the papers, we have now been granted an oral hearing to further argue our case.
What does the smoking ban at Ashworth Hospital involve?
The ban in question at Ashworth Hospital has been effective since 1 July 2008, when the temporary exemptions to the provisions of The Health Act 2006 came to an end. It is understood that the smoking policy was introduced to give effect to aim of having a “smoke free NHS” contained in the White Paper, Choosing Health.
What is the challenge about?
This challenge is different to the challenge previously brought, by a number of patients at Rampton High Security Hospital, to the smoking policy in place at that Hospital (see R (N) v Secretary of State for Health; R (E) v Nottingham Healthcare NHS Trust  EWCA Civ 795). The arguments in that case were based primarily upon Articles 8 (the right to respect for private and family life, home and correspondence) and 14 (prohibition of discrimination on any ground such as sex, race, colour etc) of the European Convention on Human Rights.
The challenge that we are currently undertaking is instead based upon common law rights to personal autonomy. Furthermore, in the Nottinghamshire case, there was no challenge to the decision to prevent smoking outdoors, which again differentiates that case from the current matter which we are pursuing on behalf of our client. Whilst the Health Act 2006 prevents smoking indoors we are seeking to argue that there is no statutory basis for banning the Claimant smoking when he is outdoors.
We have asserted that the right to personal autonomy includes a right to smoke even if the same is considered unwise and potentially harmful. This case therefore clearly raises some issues in relation to mental capacity – in summary that a patient who is deemed to have capacity to make decisions in this area, is entitled to make such decisions even if they are considered unwise by others and even when it is likely to be harmful to their own health.
What happens next?
This hearing will take place in mid-September 2014 and we will of course keep our followers updated …