PRO-SMOKING campaigners have branded a Great Western Hospital smoking ban as a breach of the Health Act 2006.

Martin Hensman, a lawyer from Freedom 2 Choose, which is in opposition to all smoking bans, claimed that according to the statute it is illegal for any NHS Hospital Trust to stop patients or visitors from smoking on its property – as long as it is done in the open air.

He said he was shocked by GWH’s stance since it was “wasting” thousands of pounds in public funds on spy cameras and smoking officers to enforce the policy.

His comments come months after the Adver published details about how GWH spent more £12,156 to install and then remove the hospital’s smoking shelters and a further £16,000 on the smoking officers.

Mr Hensman said: “The relevant provision of the governing document – Health Act 2006 – clearly states that all non-employees have the legal right to smoke in the open air.

“As they are not committing an offence there is no possibility of them either being evicted from the grounds or to be forced by a member of staff to extinguish a cigarette.

“Section 2(4) prohibits the smoking of tobacco in enclosed and substantially enclosed work-places only.

“Also it is possible that the trust may have overlooked Section 4 (1) of the act, which clearly states that these restrictions may only be extended by the appropriate National Authority – which is the Secretary of State for Health.

“When sections 2(4) and 4(1) are read in conjunction with Section 82, it then becomes quite clear that work areas which are neither enclosed nor substantially enclosed clearly fall outside the reach of the existing statutory provisions.

“No prohibition of smoking was intended to apply to these areas.”

Phil Johnson, the campaign’s pub and club liaison officer, said: “They originally put the smoking ban in to protect people from second hand smoke, which is fair enough.

“But for a hospital like GWH to banish people to the street, right next to a dual carriageway, is ludicrous, and against their human rights.”

A GWH spokeswoman said: “The Trust has had a smoking ban successfully operating across all its buildings and five metres beyond the buildings, since the GWH opened in 2002. This applied to all patients, staff and visitors.

“The government is committed to reducing the number of smokers in the UK.

“In line with many other hospitals across the country the Trust Board took a policy decision to extend its smoking ban to the hospital grounds. This came into effect from August 2008.

“The Trust believes that this is not a matter of criminal proceedings against people who are smoking on site, rather this is a policy issue as the Trust wishes to maintain a smoke free environment for the benefit of all GWH users.

“The dangers of smoking and of passive smoking are well documented and the Trust is committed to supporting patients and staff who want to give up smoking. In conjunction with NHS Swindon, advice about stopping smoking is offered to patients and support is available from NHS Swindon.”