As Scotland moves towards its vision of a generation free from tobacco, managers will have to negotiate the introduction of smoke-free policies in challenging environments such as prisons and healthcare places of detention.
A recent judicial ruling has helped to clarify the law in this potentially difficult area.
The case centred on a patient who wished to be allowed to smoke while detained at Scotland’s State Hospital (Carstairs), the only special security psychiatric hospital covering Scotland and Northern Ireland.
In December 2011, Carstairs, which is managed by the State Hospitals Board for Scotland, prohibited the possession of tobacco products and smoking in the grounds as well as within the hospital.
A patient called Charles McCann challenged the ban arguing that he would be allowed to smoke if he was being held in a prison or if his condition could be treated in the community.
In August 2013, Judge Lord Stewart ruled that the policy was unlawful as it was a breach of Mr McCann’s rights under the European Convention on Human Rights (EHCR).
Lord Stewart commented that it would be wrong to strike down the board’s decision to go comprehensively smoke-free but he was allowing the application “with a degree of reluctance”, adding it “is a perfectly reasonable proposition, given contemporary understanding about the effects of tobacco smoking, that patients in a hospital should not be permitted to smoke”.
However, Lord Stewart also suggested the decision to prevent Mr McCann from smoking had not been made with due reference to the principles set out in Scotland’s mental health legislation.
Carstairs management then appealed the decision and were successful.
In August this year Lord Carloway ruled that management decisions at the State Hospital were not governed by mental health legislation and that Lord Stewart’s ruling should not have been made on that basis.
The appeal court’s opinion was also that the decision by management to implement the complete smoking ban was lawful; that the ban did not contradict the Scottish Government’s policy; that a partial smoking ban would have been unworkable; and that Mr McCann’s rights under the ECHR had not been violated.
Lord Carloway explained: “The decision about whether patients, or indeed staff and visitors, should be permitted to smoke within the boundaries of the State Hospital was, and is, one of management.”
He added that “it is not for the court to review the merits of the decision and to substitute its own views on the desirability of imposing a comprehensive smoking ban in the State Hospital”, further noting that the ban was “proportionate to the legitimate aim of promoting the health of those detained and those at work”.
Lord Brodie agreed with Lord Carloway but the third judge on the appeal panel, Lady Paton, felt that the ECHR was relevant. She said that smoking was part of an individual’s “personal autonomy” as it is “such an addictive activity”.
But she allowed the appeal in the interests of public safety, the prevention of crime and for the protection of health. The reference to “the protection of crime” may refer to the implications of driving smoking underground and the potential for criminal behaviour such as smuggling lighters and matches.
It is our belief that the successful appeal has underlined the legitimacy of introducing smoke-free policies in healthcare premises, healthcare places of detention and probably also in facilities such as prisons.
The appeal judgment marks an important milestone for Scotland in clarifying its ability to introduce arrangements that ban smoking in places where the state or public services have a duty of care.
We urge healthcare managers to proceed with implementing the Scottish Government’s goal of having indoor mental health facilities smoke-free in 2015.