ABSTRACT
Smoking is permitted in a prisoner’s cell; it is not permitted in hospital. The former is justifi ed on the basis that this is the prisoner’s home, and not a public place, with the consequence that prisoners now choose between smoking and non-smoking cells. In hospitals smoking is not permitted; for the purposes of s 2 of the Health Act 2006, which came into force on 1 July 2007, hospitals are both public places, in the sense that they are open to the public, and they are places of work. Secure hospitals arguably fall between the two, being neither obviously open to the public, but nor are they discounted as places of work or residence. Yet as a result of the Health Act 2006, and the regulations made under it, detained offender-patients are in an anomalous position. Such patients can rightly argue that they will spend as long, and sometimes longer, than their non-disordered offending counterparts in conditions of detention where those conditions constitute, for all effective purposes, their homes. Indeed, some offender-patients will be prisoners transferred under the MHA 1983 from prison accommodation, where they can smoke, to hospitals where they cannot. So should offender-patients be held under comparable conditions to prisoners, or under similar regimes to those in hospitals where conditions of detention do not pertain; that is, where smoking is not permitted but patients can take themselves to areas that are not enclosed or substantially enclosed?1
