Two psychiatric patients lose legal battle to overturn smoking ban in Glasgow institutions

Two detained psychiatric patients have lost a legal battle to overturn a complete smoking ban at the institutions where they are held but succeeded in overturning a prohibition on having lighters and matches.

Both men, known as A and B who are held under court orders, provided statements saying that they wanted to smoke in a judicial review against the decision of NHS Greater Glasgow & Clyde health board.

Mr A said he was aware that smoking was bad for his health but wished to continue as he enjoyed it. Mr B said he had started smoking again because he felt it helped his anxiety and did not feel there was any benefit to his health as a result of being forced to give it up.

They raised a judicial review of the board's decision to introduce a comprehensive ban in 2015 on smoking in the grounds of the Glasgow's medium secure Rowanbank Clinic and the city's Leverndale Hospital, which has a low security inpatient facility, where they are detained.

They claimed that the ban was unlawful because it was not proportionate in a human rights challenge and that the board had failed to adequate reasons for introducing it.

Their counsel David Leighton told the Court of Session in Edinburgh that an alternative measure, which was least intrusive would be to allow smoking outdoors.

But Lady Carmichael said in a judgement issued today that she considered it was 'within the margin of discretion' open to the board to impose a comprehensive ban on smoking in its mental health hospitals.

The judge said: 'A partial ban on smoking would not protect patients or staff from the adverse effects of smoking as effectively as would a complete ban.'

'The serious nature of the adverse effects of smoking and exposure to second hand smoke are such that I am satisfied that the impact of the prohibition is not disproportionate to its likely benefit,' she said.

The judge said that since an earlier Supreme Court ruling involving the State Hospital at Carstairs patients at Rowanbank and Leverndale had been allowed to possess tobacco but not lighters and matches.

But Lady Carmichael said the bans on possession of 'sources of ignition' was unlawful as the board had sought to achieve the prohibitions without using the procedures contained in 2005 mental health regulations.

She said: 'It follows that they are not in accordance with domestic law and for that reason are in breach of Article 8 ECHR.'

The judge said the effect of the Supreme Court decision 'is potentially wide ranging and may mean the respondents (the board) cannot achieve what they have hitherto regarded as routine prohibitions on the possession of certain types of items, so far as detained patients are concerned, without using the specified persons procedures'.

Lady Carmichael said she had decided that the blanket ban on smoking was lawful and did not breach the detained men's human rights but added that she would set aside the prohibition on having lighters or matches.

Mr Leighton had sought £3000 in damages for Mr A and £500 for Mr B but the judge said she considered that financial compensation was not necessary to afford just satisfaction.

• smoking ban
• Court of Session in Edinburgh