Charles McCann secured a ruling that the move at the state hospital at Carstairs was unlawful and breached his human rights, at the Court of Session in Edinburgh last year. But following an appeal by the hospital authorities, three judges have now reversed the decision.
McCann, who suffers from schizophrenia, spent 18 years detained in the institution after he was charged with offences such as breach of the peace and police assault. He was later moved to a medium-secure unit.
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.
McCann raised a judicial review to challenge the policy and Lord Stewart said: “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.”
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.
Lord 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 Lord 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: “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.”
He added that Lord Stewart’s view “that the smoke-free policy has been imposed on mental health detainees and not on prisoners because the latter are in a position to defend themselves and the former are not appears to be without foundation, as the current proceedings themselves demonstrate”.
Lord Carloway said the smoking ban was “proportionate to the legitimate aim of promoting the health of those detained and those at work”.