AUGUSTA – A lawyer representing patients at the state’s psychiatric hospital is asking that a proposal to ban smoking anywhere on hospital grounds be overturned.

Peter Darvin, an attorney for Augusta Mental Health Institute patients, wrote a letter to Court Master Daniel Wathen challenging the no-smoking policy proposed by the state Department of Behavioral and Developmental Services.

Darvin quoted six patients who are heavy smokers and said the tobacco ban would be difficult, unfair and make their unpleasant stays at the hospital even worse.

Wathen said he likely will decide the dispute in several days.

“When [patients] are trying to focus on getting better, they shouldn’t be required to make a major life change which adds stress,” said Darvin, who represents nearly 4,000 past and present AMHI patients in a long-standing class action suit dealing with other issues. “I think it’s become a civil rights issue.”

The smoking ban was proposed in anticipation of a move to a new $33 million, 92-bed psychiatric hospital that will replace AMHI.

The new Riverview Psychiatric Center is scheduled to open later this winter, and smoking would be banned anywhere within the hospital’s security fence.

Wathen, the state’s former Supreme Court chief justice, is the court master overseeing the consent decree that ordered improvements in conditions and treatment of Maine’s mentally ill people.

Wathen said lawyers for the state dispute his authority over smoking matters, and said he will have to first determine if the new no-smoking policy falls under his authority.

But he said the court-appointed receiver who now has control over the hospital has urged him to decide the issue.

Wathen’s decision could be appealed to the judge overseeing the consent decree.

Assistant Attorney General Katherine Greason wrote in a response to Wathen that hospital officials can impose a smoking ban for health reasons, similar to those in effect at virtually every other hospital. She said the consent decree prescribes only treatment for mental illnesses.

“The dangers of exposure to secondhand smoke are well-documented,” Greason wrote. “… AMHI did not undertake the decision to go smoke-free lightly. The hospital is aware that as of Nov. 12, 2003, 46 out of 80 patients were smokers and 78 out of 300 staff identified themselves as smokers.”

Darvin said a smoking ban would violate the consent decree’s emphasis on patients’ rights to be treated as individuals and to make their own decisions about their lives.

He said he doesn’t object to making the hospital smoke-free or even creating a perimeter within which smoking would not be allowed. But he said any suggestions short of an outright ban were rejected.

“I don’t think they showed any willingness to make any accommodation,” he said.