Petition for C M for Judicial Review and Answers for the State Hospitals Board for Scotland
A patient at a state mental hospital in Scotland challenged the hospital’s comprehensive smoke-free policy, which prohibited him from smoking indoors and on the hospital grounds. The court found that the hospital’s policy was unlawful as applied to this particular patient but it did not overturn the smoking policy entirely. The court ruled that the hospital’s policy violated the patient’s human rights and the hospital failed to show an objective and reasonable justification for treating the patient differently from adult prisoners, who are able to smoke. The court refused to award damages to the patient.
Petition for CM for Judicial Review and Answers for the State Hospitals Board for Scotland, CSOH 143 (2013).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to equal protection under the law, or another form of discrimination. The industry may claim that regulations discriminate against tobacco companies or tobacco products. Smokers may claim that addiction is a health condition, so regulations discriminate against them based on their health condition. Facilities subject to smoke free laws may claim that smoke free (SF) exceptions (e.g., hotel rooms, mental hospitals, etc.) unfairly discriminate against SF businesses because the law should apply to all locations equally.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
None
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"If article 8 ECHR is engaged, and I hold that it is, it is for the respondents to justify interfering with the petitioner's right to make his own decision about smoking. They have failed to do so satisfactorily. Indeed, I am satisfied that the decision to stop the petitioner smoking in the hospital grounds constituted interference with the petitioner's article 8 ECHR rights without lawful warrant ― because it was not made in accordance with section 1 principles ― and because it went further than was necessary to achieve the legitimate aim in question, namely to protect third parties from the petitioner's cigarette smoke. The respondents have also failed to demonstrate an ʺobjective and reasonable justificationʺ for treating the petitioner differently from adult, long‐term prisoners, who can smoke if they wish. Going further, on the material presented to me and in the absence of any other suggestion, it appears that the only justification for imposing a smoking ban on mental health detainees like the petitioner and not on penal detainees is that it is feasible to compel mental health detainees to stop smoking because of their vulnerability. This is not a legitimate justification. Accordingly I hold that there has been a violation of the petitioner's right not to be discriminated against in the enjoyment of his article 8 ECHR rights contrary to article 14 ECHR. Reading between the lines, I infer that Scotland does not have a complete statutory prohibition on smoking in the buildings and grounds of psychiatric hospitals in general and of the State Hospital in particular because the government could not, at the time, gather the requisite consensus for such a ban. If the legislature will not support a measure it is wrong to enforce it by extra‐statutory means. It may be of course, given the experience at the State Hospital, that the time is now right to try and put the ban on a statutory footing."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
A patient at a state mental hospital in Scotland challenged the hospital’s comprehensive smoke-free policy, which prohibited him from smoking indoors and on the hospital grounds. The court found that the hospital’s policy was unlawful as applied to this particular patient but it did not overturn the smoking policy entirely. The court ruled that the hospital’s policy violated the patient’s human rights and the hospital failed to show an objective and reasonable justification for treating the patient differently from adult prisoners, who are able to smoke. The court refused to award damages to the patient.