Jochelson (Reference Jochelson2006) has described the issues that arise for mental health units in England and Wales as a result of the Health Act 2006 which will ban smoking in public places. The proposed regulations will require most mental health units to ensure that the wards and the communal areas are smoke free. However, Jochelson does not consider the challenge to the implementation of the regulations presented by patients detained under the Mental Health Act 1983. These patients are detained in hospital against their will and are very likely receiving treatment to which they have not consented. Not only will they be deprived of their liberty but, if they are smokers, may also be forced to stop smoking. To compel a patient to stop smoking is unlikely to be a lawful use of the powers of the Mental Health Act 1983. To enforce a ban on smoking could be found to be an unjustifiable interference with the patient's human rights, if subjected to a legal challenge (Mental Health Act Commission, 2006a ).

Patients may be allowed to smoke outside the building, but for some patients on some units this may not be possible because of the risk posed to themselves or others. The regulations will allow units that normally provide accommodation for more than 6 months to have a designated smoking room. However, figures from a national census of mental health hospitals in England and Wales in March 2006 suggest that approximately half of the 14 300 patients detained had not been resident for 6 months (Mental Health Act Commission, 2006b ). A majority of all detained patients are likely to spend at least an initial period in acute or admission units, and many will not move into ‘long-term residential units’. The Mental Health Act Commission has suggested that the Government should consider widening the scope of the proposed regulations to allow units where patients are detained to qualify as ‘specified premises’ and to provide indoor designated smoking facilities.