G, R (on the application of) v Nottinghamshire Healthcare NHS Trust

G, R (on the application of) v Nottinghamshire Healthcare NHS Trust

Neither Article 8 nor Article 14 ECHR is engaged by the ban on smoking in mental health units as implemented by Regulation 10(3) and the Trust’s policy; there is no general right to smoke in such institutions, and the absence of exemption for detained mental patients does not amount to discrimination. Even if Article 8 were engaged, the measures are justified and proportionate under Article 8(2) for the protection of health and security. The regulation cannot be read down under Section 3 of the Human Rights Act 1998 to provide a permanent exemption. The Trust’s policy was not applied inflexibly in B’s case.

Parties
First Claimant: The Queen on the application of G; First Defendant: Nottinghamshire Healthcare NHS Trust; Second Claimant: The Queen on the application of N; Second Defendant: Secretary of State for Health; Third Claimant: The Queen on the application of B
Jurisdiction
England and Wales
Judgment Date
20 May 2008
Procedural Posture
Judicial Review / Final Judgment and Post Judgment Ruling
Outcome
Claims dismissed
Legal Topics
Article 8 ECHR (right to Private and Family Life), Article 14 ECHR (non Discrimination), Judicial Review of Regulations, Proportionality, Interpretation of Subordinate Legislation, Smoking Ban in Mental Health Units
Constitutional Law Human Rights Law Administrative Law Health Law Article 8 ECHR (right to Private and Family Life) Article 14 ECHR (non Discrimination) Judicial Review of Regulations Proportionality +2 more

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Parties

The Queen on the application of G

First Claimant

Nottinghamshire Healthcare NHS Trust

First Defendant

The Queen on the application of N

Second Claimant

Secretary of State for Health

Second Defendant

The Queen on the application of B

Third Claimant

Procedural Posture

Judicial Review / Final Judgment and Post Judgment Ruling

Legal Issues

  1. 1 Whether Regulation 10(3) of the Smoke-free (Exemption & Vehicles) Regulations 2007 is incompatible with the rights of detained mental patients under Article 8 and/or Article 14 of the European Convention on Human Rights
  2. 2 Whether a declaration of unlawfulness or a reading down of Regulation 10(3) is required under Section 3 of the Human Rights Act 1998
  3. 3 Whether the Trust’s policy on smoking is unlawfully inflexible in the case of B

Ratio Decidendi

Neither Article 8 nor Article 14 ECHR is engaged by the ban on smoking in mental health units as implemented by Regulation 10(3) and the Trust’s policy; there is no general right to smoke in such institutions, and the absence of exemption for detained mental patients does not amount to discrimination. Even if Article 8 were engaged, the measures are justified and proportionate under Article 8(2) for the protection of health and security. The regulation cannot be read down under Section 3 of the Human Rights Act 1998 to provide a permanent exemption. The Trust’s policy was not applied inflexibly in B’s case.

Court Disposition

Claims dismissed

Orders

  • No order for costs except detailed assessment of claimants' publicly funded costs
  • Permission to appeal refused; if to be granted, it is for the Court of Appeal