Patients can challenge smoking ban

The patients, who cannot be named for legal reasons, say the ban infringes their common law right to smoke outdoors at Chadwick Lodge Hospital, Milton Keynes, Buckinghamshire.

Giving them permission to seek judicial review, Mr Justice Silber said: “It is obviously a case of great importance. Whoever deals with this case is going to have an interesting time.”

Chadwick Lodge is a 52-bed medium-secure unit providing specialist treatment programmes for male and female patients who have been detained under the 1983 Mental Health Act and have a history of offending behaviour.

One of the patients who launched the challenge, ES, who cannot be named for legal reasons, is no longer at the hospital but could be sent back there.

Another patient is a smoker of 46 years who has just been granted legal aid to seek judicial review.

Hugh Southey QC, appearing for the patients, said the ban on patients smoking – indoors or outdoors – was introduced last December.

The courts had also ruled that smoking could lawfully be prohibited at top-security hospitals where patients could not go outside to smoke because of security concerns, said Mr Southey.

But that ruling did not affect patients detained at medium or low- security psychiatric hospitals.

Mr Southey argued that the ban at Chadwick Lodge was unlawful at common law and breached the 2010 Equality Act.

Granting the patients permission to bring their legal challenge, the judge directed that the Health Secretary should be joined to the action as an interested party because of the importance of the case.

Chadwick Lodge was not represented at yesterday’s hearing.