[2009] EWCA Civ 795  

Mental health patients (P) who were detained at Rampton high security psychiatric hospital, appealed against a decision dismissing their claims for judicial review of the ban on smoking at the hospital. As a place of work, Rampton was required to be smoke-free under Health Act 2006, unless exempted by Regulations. The Smoke–free (Exemptions and Vehicles) Regulations 2007 introduced a temporary exemption for mental health units where it would not be feasible to smoke outside but a permanent exemption for prisons.  

P argued Smoke-free (Exemptions and Vehicles) Regulations 2007 were incompatible with art.8 right to respect for private and family life under European Convention on Human Rights 1950. They also argued as long-term detainees the hospital could be regarded as their home and since under Health Act 2006 s.3 (2) homes were exempted from requirement to be smoke-free they should also be afforded this permanent exemption.  

Held: Requirement to respect for private and home life under art. 8 did not impose a general obligation upon those responsible for caring for P to make provisions to enable P to smoke. Rampton was a public institution operating as a hospital and not a private home. A patient’s life and activities in a secure hospital were restricted and supervised such that he could not choose what to eat or drink freely. There was no basis for distinguishing loss of freedom to  choose what to eat and the ban on smoking.  

Appeals dismissed.