R (N) v Secretary of State for Health, R (E) v Nottinghamshire Healthcare NHS Trust (Equality and Human Rights Commission as Intervenor)
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 2009 |
| Neutral Citation | [2009] EWCA Civ 795 |
| Docket Number | Case No: C1/2008/1307 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 2009 |
[2009] EWCA Civ 795
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT OF THE QUEEN'S BENCH DIVISION
(Lord Justice Pill and Mr Justice Silber)
Lord Clarke of Stone-Cum Ebony Mr
Lord Justice Keene and
Lord Justice Moses
Case No: C1/2008/1307
CO/2459/2007 and CO/5522/2007
Paul Bowen and Azeem Suterwalla (instructed by Scott-Moncrieff, Harbour & Sinclair) for N and (instructed by Cartwright King) for E
Jonathan Swift and Karen Steyn (instructed by the Department of Health) for the
Secretary of State for Health
David Lock and Nageena Khalique (instructed by Mills & Reeve) for the NHS Trust
Helen Mountfield, by written submissions, for the Intervener
Hearing dates: 25 and 26 February 2009
Lord Clarke of Stone-cum-Ebony MR and Lord Justice Moses:
Introduction
This appeal arises out of a decision of the Divisional Court (Pill LJ and Silber J) handed down on 20 May 2008 on applications for judicial review against the Nottinghamshire Health Care NHS Trust ('the Trust') and the Secretary of State for Health ('the Secretary of State') challenging the ban on smoking at Rampton Hospital ('Rampton'). The applicants for judicial review were B, G and N, who either were or had been detained at Rampton. The applications failed. Permission to appeal was refused by the Divisional Court and by Mummery LJ on paper but was subsequently granted by Tuckey and Smith LJJ after an oral hearing. The appellants were initially G and N but G has since indicated that he wishes to discontinue his claim against the Trust. Since then arrangements have been made with the Legal Services Commission to substitute E for G. We have concluded that that is a sensible step to take and therefore grant the application for substitution.
The Divisional Court dismissed claims for judicial review and under section 7 of the Human Rights Act ('the HRA') as follows:
i) in N's case, judicial review of regulation 10 of the Smoke-Free (Exemption & Vehicles) Regulations 2007 ('the Exemption Regulations') in so far as, in the case of mental health units, it introduced only a temporary exemption, until July 2008, rather than a permanent exemption from the requirements of the Health Act 2006 ('the 2006 Act') that all premises used by the public be “smoke-free” from 1 July 2007; and
ii) in E's case, judicial review of the Trust's policy banning smoking at Rampton with effect from 31 March 2007.
As is well known, Rampton is one of three high security psychiatric hospitals in England and Wales established by the Secretary of State for Health under what is now section 4 of the National Health Service Act 2006. The other two are Broadmoor and Ashworth. Like the Divisional Court, we will assume that similar policies are followed in all three hospitals. As the Divisional Court said at [3] of the judgment of the court delivered by Pill LJ, section 4 provides, so far as material:
“(1) The Secretary of State's duty under section 1 includes a duty to provide hospital accommodation and services for persons who -”
(a) are liable to be detained under the Mental Health Act 1983, and
(b) in the opinion of the Secretary of State require treatment under conditions of high security on account of their dangerous, violent or criminal propensities.
(2) The hospital accommodation and services mentioned in subsection (1) are referred to in this section and paragraph 15 of Schedule 4 (NHS trusts) as “high security psychiatric services.
(3) High security psychiatric services may be provided only at hospital premises at which services are provided only for the persons mentioned in subsection (1).”
The thrust of the appellants' case is that the Exemption Regulations and the Trust's policy unlawfully infringe their rights under article 8 and/or article 14 of the European Convention on Human Rights ('the Convention'). In the context of article 14 it is said that the Secretary of State unlawfully discriminates between those detained at Rampton under the Mental Health Act 1983 ('the MHA') and those in prison.
4. Section 3 of the MHA provides for the detention of mental health patients in a civil context. Section 37 provides for hospital orders made in criminal proceedings after conviction or findings of insanity or unfitness to plead. Such orders are made with or without restrictions under section 41. Sections 47 and 48 provide for transfers for convicted prisoners, prisoners on remand and other detainees such as immigration detainees and section 49 provides for restrictions on those transferred under section 47 or 48 having the same effect as a restriction order under section 41.
Smoking ban—the statutory framework
5. The Divisional Court set out the relevant provisions of the 2006 Act and the Exemption Regulations at [5] to [9]. We take this account largely from that section of the judgment. Section 1 of the 2006 Act makes provision for the prohibition of smoking in certain premises, places and vehicles. Section 2 provides for “smoke-free premises”. Premises are defined by section 2(1) and (2) as smoke-free inter alia“if they are open to the public” and in certain circumstances if they are used as a place of work. They must be smoke-free all the time. Section 2(4) provides:
“In any case, premises are smoke-free only in those areas which are enclosed or substantially enclosed.”
It is common ground that Rampton is a place of work and must be smoke-free under the 2006 Act unless exempted by regulations.
6. Section 3 provides for some premises, or areas of premises, not to be smoke-free, despite section 2. It provides, so far as relevant:
“(1) The appropriate national authority may make regulations providing for specified descriptions of premises, or specified areas within specified descriptions of premises, not to be smoke-free despite section 2.
(2) Descriptions of premises which may be specified under subsection (1) include, in particular, any premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes and prisons and other places where a person may be detained). …
(6) The regulations may provide, in relation to any description of premises or areas of premises specified in the regulations, that the premises or areas are not smoke-free
(a) in specified circumstances,
(b) if specified conditions are satisfied, or
(c) at specified times,
or any combination of those.
(7) The conditions may include conditions requiring the designation in accordance with the regulations, by the person in charge of the premises, of any rooms in which smoking is to be permitted.”
The expression “other places where a person may be detained” naturally includes Rampton and indeed other mental hospitals where patients are detained under the MHA. It is important to note that, as the Divisional Court observed, the appellants do not say that the 2006 Act is itself incompatible with their rights under the Convention.
Their complaint is about the Exemption Regulations, which were made by statutory instrument under section 79 of the 2006 Act. Section 79(4) requires that such regulations must be subject to a positive resolution of each House of Parliament. The Exemption Regulations, which are headed “Public Health England”, were made on 7 March 2007 and came into force on 1 July 2007. The Exemption Regulations contain exemptions for private accommodation, accommodation for guests and club members, specialist tobacconists and research and testing facilities: see regulations 3, 4, 7 and 9 respectively. The relevant regulations for present purposes are regulations 5 and 10.
Regulation 5 is headed “Other residential accommodation” and, so far as relevant, provides:
“(1) A designated room that is used as accommodation for persons aged 18 years or over in the premises specified in paragraph (2) is not smoke-free.
(2) The specified premises are –
(a) care homes as defined in section 3 (care homes) of the Care Standards Act 2000;
(b) hospices which as their whole or main purpose provide palliative care for persons resident there who are suffering from progressive disease in its final stages; and
(c) prisons.”
The meaning of “designated room” is specified in paragraph (3).
The appellants' complaint focuses on the difference between the exemptions granted to prisons under regulation 5 and the temporary exemptions granted to mental heath units under regulation 10. That regulation is headed “Temporary exemption for mental health units” and provides:
“(1) A designated room for the use of patients aged 18 years or over in residential accommodation in a mental health unit is not smoke-free.
(2) In this regulation —
“designated room” means a bedroom or a room used only for smoking which –
(a) has been designated in writing by the person in charge of the mental health unit as being a room in which smoking is permitted;
(b) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor-to-ceiling walls;
(c) does not have a ventilation system that ventilates into any other part of the premises (except any other designated room);
(d) is clearly marked as a room in which smoking is permitted; and
(e) does not have any door that opens on to smoke-free premises which is not mechanically closed immediately after use; and
“mental health unit” means any establishment (or part of an establishment)...
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