August 2016     No 2

The ban is driven by costs

For a government seeking to manage NHS resources, reducing the health costs associated with the inhalation of tobacco smoke is the key factor behind anti-smoking legislation. It started with smoking on public transport, then buildings to which the public had access and now smoking in wide open spaces is in prospect. However, as is usual with issues driven by single-issue lobbyists, a failure to proceed cautiously in order to check for unforeseen consequences may cause harm.

The government runs institutions in which people reside. These include prisons and hospitals. Prisoners have broken the law so seriously that loss of liberty is the only response. In a hospital, patients require an environment free from the harmful contents of cigarettes but patients in hospital are not prevented from leaving the ward and can have access to the open air. Contrast this with psychiatric hospitals where patients are detained. They are not prisoners. They are in hospital for treatment. Detention means that they cannot leave the ward even for a few minutes without permission for any purpose.

Coping with mental disorder

To warrant detention, the mental disorder must pose a such a risk to health or safety that detention is necessary. An individual struggling with disturbed thoughts and feelings will need all their resources to keep going. Simply getting out of bed can be a challenge when what is in prospect is a day of confusion and distress.

Relatively simple pressures, like a cold or a domestic upset, can cause anyone to react in a way which they might later regret. Sometimes we just want to be left alone.  Consider if you were suffering from delusions or thought disorder so that you cannot effectively communicate your feelings. Everything you say is misunderstood or not understood at all. Voices might be telling you that you are ugly, useless or about to be attacked. Now consider that you are a smoker. Nicotine can be highly addictive. It is notoriously difficult for quitters to cope with the craving. Smoking may be unwise but nicotine is not a proscribed drug. In psychiatric hospitals there is no smoking. Patients benefit from access to calm spaces and fresh air but smoking is banned on the whole site; gardens, car parks, access roads, the whole open air areas are smoke free. There is nowhere a distressed patient can go when they want a quick fag. On a train a smoker might sneak into the loo and risk a fine but in the grounds of a psychiatric hospital, smoking leads to withdrawal of ground leave which is essential to wellbeing and robs staff of a tool for establishing when the patient might be ready to be discharged.

A disproportionate policy

Allowing spaces for smoking is not a difficult task nor is it resource intensive. It is the ban which is resource intensive and it generates harm. In numerous mental health tribunals we have heard evidence from professionals who express frustration at the difficulty in granting ground leave to smokers. Leave, which is an essential tool in monitoring the progress of a patient, is withdrawn not because of any sign of risk but because of rules against smoking being broken. There is also deep concern about the risk to staff arising from the ban. Conflict adversely affects the crucial relationship between staff and patients. This may lead to delayed discharge and to staff being seriously injured.

Statistical evidence

Figures obtained from Lancashire Care Foundation NHS Trust establish that safety concerns are well founded. In the 18 month period to the end of May 2016 there were 326 violent incidents related to smoking of which 70% were on staff. The Strategic Executive System (STEIS) and National Reporting and Learning System (NRLS) require reporting of serious incidents. In the 18 month period there were 2 incidents on staff involving severe harm such as a fracture or long term disability. There were 46 incidents on staff classified as moderate requiring an A & E assessment or absence from work for more than 7 days and 118 of low grade requiring first aid or an absence of less than 7 days. Other patients and visitors are also affected. There were 24 incidents affecting people other than ward staff described as moderate and another 42 said to be low grade. Even where no actual harm was identified there 89 incidents which none the less warranted reporting. These statistics are truly shocking figures and represent the picture in only one mental health NHS trust. They mask the true position because staff find ways round the ban which is likely to have avoided more incidents. As trusts seek to clamp down on evasion, the risks will escalate. Complaints are dismissed by reference to the availability of aids to quitting but there is a failure to assess the ability of the patient to understand or cope.

Mental health staff work in the most challenging area of our health system. They do not go to work to be injured. Patients go to hospital to get better, not to be tormented. Staffing levels on psychiatric wards are worryingly low. Absences through injury make a bad situation worse and inhibit recruitment. It defeats the objective behind the ban by increasing costs to the NHS. As the law currently stands, thanks to R(G) v Nottingham Healthcare NHS Trust (2008) EWHC 1096, it is assumed that the ban cannot be challenged in court. But this decision was based on the Human Rights Act and, not surprisingly, there is no human right to smoke. However, there is now clear proof that personal safety is compromised by a blanket ban. It has become unreasonable, extending far beyond the high secure system operating at Rampton at the time of the 2008 challenge. It violates personal safety, compromises treatment and is unreasonable. Put simply, it is inhumane.

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