N, R (on the application of) v Secretary of State for Health

The majority held that a detained patient has no Article 8 right to smoke in a secure psychiatric hospital. Whether an activity falls within private life depends on all relevant factors, including the nature of the place, the activity, personal autonomy, physical and moral integrity, identity and social interaction. Rampton was a public institution in which private freedoms were substantially restricted, and smoking was insufficiently connected with the protected sphere. Article 14 was therefore not engaged. Alternatively, the Trust’s policy and the time-limited exemption in the Smoke-Free (Exemption & Vehicles) Regulations 2007 were justified as proportionate health measures. The difference between mental health units and prisons, care homes and hospices was rationally defensible. The common law principle of equality required only a rational basis for distinctions.

Two judicial review claims concerned smoking restrictions at Rampton Hospital. N challenged regulation 10 of the Smoke-Free (Exemption & Vehicles) Regulations 2007, particularly the expiry of the temporary exemption for mental health units on 1 July 2008. E challenged the Nottinghamshire Healthcare NHS Trust’s policy, introduced on 31 March 2007, which prohibited smoking throughout the Trust’s premises subject to rare clinical exceptions.

The Divisional Court, comprising Lord Justice Pill and Mr Justice Silber, dismissed both claims on 20 May 2008. The Court of Appeal considered whether the restrictions engaged Articles 8 and 14 of the Convention, whether they were justified, and whether the regulatory distinctions were irrational or contrary to common law equality.

Majority: Lord Clarke MR and Moses LJ. Both appeals were dismissed. The substitution of E for G was granted.

1. The scope of Article 8 could not be decided solely by asking whether smoking occurred in a private place or whether it formed part of personal identity or autonomy. The court had to consider the nature of the accommodation, the activity, its relationship to physical or moral integrity, personal development and social interaction. Rampton was the patients’ home in one sense, but it was a public, secure hospital where ordinary freedoms were intrinsically restricted. Smoking was not sufficiently close to the protected aspects of private life to engage Article 8(1).
2. Since the right to smoke did not fall within Article 8, it was not within the Article 8 ambit for Article 14 purposes. The question whether the appellants had an Article 14 “other status” therefore did not arise.
3. Alternatively, the Trust’s policy would have been justified under Article 8(2). The Trust could manage its premises, owed duties to patients and staff, had to address self-harm risks, and was entitled to take long-term health measures despite short-term difficulties. The policy was necessary and proportionate for protecting patients and staff from the health risks of smoking and second-hand smoke.
4. Alternatively, the Secretary of State’s temporary exemption was justified. The Health Act 2006 prohibited smoking indoors but permitted limited exemptions. The regulations followed extensive consultation and affirmative parliamentary scrutiny. The distinction between mental health units and prisons, care homes and hospices reflected differences in purpose, healthcare setting, evidence of feasibility and the risk of extending health inequalities.
5. The common law principle of equality, identified in Matadeen v Pointu [1999] 1 AC 98, required distinctions between groups to have a rational basis. The regulations met that standard, and permission to appeal on this additional ground was refused.

Keene LJ dissenting

Keene LJ considered that smoking by long-term residents in Rampton engaged Article 8 because personal autonomy was broad and morally neutral, and Rampton was institutionally equivalent to a home for these purposes. He would have held regulation 10(3) disproportionate: a designated smoking room was a less restrictive and practicable alternative, and Parliament had not appreciated that the time limit could produce a complete or near-complete ban for secure patients. He would have allowed the appeals against the regulation but dismissed them as against the Trust, whose refusal to permit outdoor smoking was reasonable and proportionate.

• Court of Appeal (Civil Division): dismissed both appeals and refused permission on the proposed common law equality ground.
• Administrative Court of the Queen’s Bench Division (Divisional Court): on 20 May 2008 dismissed the judicial review claims and claims under section 7 of the Human Rights Act 1998; permission to appeal was refused at that stage.