Carstairs inmate goes to Supreme Court to win right to smoke in State Hospital

APATIENT at Scotland’s high-security state psychiatric hospital, Carstairs, is heading to the Supreme Court this week to try to overturn the facility’s blanket smoking ban. Charles McCann’s legal battle with the authorities will reach the highest court in the land on Tuesday as he seeks a ruling allowing him to smoke at the state hospital.

McCann, who suffers from schizophrenia, has been kept in a secure unit since 1995 after being prosecuted for offences including breach of the peace.

He has previously secured a ruling that the move to ban smoking at Carstairs was unlawful and breached his human rights, only for it to be overturned following an appeal by the hospital authorities,

The State Hospitals Board for Scotland decided in 2011 to ban smoking and the possession of tobacco at the Lanarkshire hospital. Smoking is allowed in Scotland’s prisons.

When the smoking ban was introduced, McCann objected to management at Carstairs prohibiting the possession of tobacco products and smoking not just inside the hospital but also in its grounds.

McCann, who was later moved to a medium-secure unit, raised a judicial review to challenge the policy and won his case, with judge Lord Stewart saying: “I have come to the view, though with reluctance, that the decision to compel the petitioner [McCann] to stop smoking was flawed in every possible way.”

However, the judge said at the time that he wanted to make it clear that he was not endorsing the idea of a “human right to smoke”. He said: “There is no ‘right to smoke’ in a legal sense.”

He said that if McCann was of sound mind or his condition was such that he could be treated in the community, he would be able to smoke.

If he was a prisoner, he could smoke in jail. Stewart rejected a claim for £3,000 compensation by McCann, and decided that a finding of a breach of the European Convention on Human Rights was “just satisfaction”.

The hospital authorities appealed against Stewart’s decision on a number of grounds, including contending that it was not appropriate to draw a comparison with prisoners.

They argued the natural comparison lay with the three English high-security hospitals which had smoking bans in place.

The Lord Justice Clerk, Lord Carloway, who heard the appeal with Lady Paton and Lord Brodie, said: “It is not appropriate for the court to go behind a conclusion reached by professionals, who are experts in the field, by saying, as the Lord Ordinary appears to have done, that a partial smoking ban was workable in so far as the petitioner’s particular case was concerned.

“The idea that the petitioner alone in the State Hospital would be allowed to smoke, in the absence of any clinical imperative, is hardly a practical one given the likely reaction amongst the remaining smokers.

“The respondents required to reach a decision applicable as a generality to the hospital as a whole.”

His summary of the reasons granting the appeal continued: “The decision about whether patients should be permitted to smoke within the boundaries of the state hospital was, and is, one of management.

“It is not for the court to review the merits of the decision and to substitute its own views.”

Carloway said the smoking ban was “proportionate to the legitimate aim of promoting the health of those detained and those at work”.

McCann’s appeal against this finding will be heard by Lady Hale, Lord Mance, Lord Wilson, Lord Reed and Lord Hodge.