Patients sectioned under the Mental Health Act have won permission to bring a high court test case over a hospital smoking ban.
The patients argue that the ban breaks their common law right to smoke outdoors at Chadwick Lodge hospital, Milton Keynes, Buckinghamshire.
Allowing patients to see judicial review, Mr Justice Silber said that it is apparently an important case. No matter who deals with this case is going to have an interesting time.
Chadwick Lodge is a 52-bed medium-secure unit ensuring specialist treatment programs for patients who have been detained under the 1983 Mental Health Act and have a history of unlawful conduct.
One of the patients who launched the challenge, ES, who cannot be named for legal basis, is no longer at the hospital but could be sent back there.
Another is a smoker of 46 years who has been granted legal aid to seek judicial review.
Hugh Southey QC said the smoking ban, indoors or outdoors, was introduced last December and it was intended to prohibit smoking among patients. The 2006 Health Act evidently demanded that smoking should be prohibited indoors at hospitals.
The courts had as well established that smoking could be banned at high-security hospitals where patients could not smoke outdoors, but that rule had no affect on patients detained at medium- or low-security psychiatric hospitals.
Hugh Southey QC declared that the smoking ban at Chadwick Lodge was illegal under common law and breaks the 2010 Equality Act. It was not only prohibited to patients to smoke on hospital premises, but also to smoke when they were accompanied by hospital nurses on escorted leave.
Southey added that there is a common law right to do what you like, including smoking. That autonomy could only be limited by parliament and the Health Act did not ban smoking cigarettes outdoors.
Giving the patients permission to bring their legal challenge, the judge said that the health secretary should be joined to the action as an interested party because the case is very important.
A Chadwick Lodge spokesman said that the decision to make the hospital no smoking was born out of real initiatives hospital-wide to promote a healthy lifestyle for all patients, which included diet, healthy portion sizes at mealtimes, exercise and no smoking.
“The appelate court has already decided in the Rampton high-security hospital case in July 2009 that there is no right to smoke at a hospital.
“We will make our case at the judicial review in accordance with the established procedure.”
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