Smoking ban lights up human rights conflict

The smoking ban, due to come into effect in England on 1 July, has split the country between fervent supporters and opponents. But for the social care sector, it presents some fundamental issues about service users’ rights that have no simple solutions.

The ban, set out in the Health Act 2006, will make it illegal to smoke in any public place, with exemptions for certain residences, including prisons, care homes and psychiatric units.

Exemptions will be for residents only staff will not be allowed to smoke. Those who breach the law could face a fine of £50, rising to £200 if they are taken to court for failing to pay.

Time will tell how easy it is to actually enforce. But if that is not enough of a headache, there are indications that some local authorities and NHS trusts are using the ban on smoking in confined spaces as a springboard to go further.

Liverpool Council is to ask residents not to smoke in front of its employees, including social workers, while an NHS trust is already being sued by a service user for infringing his human rights by implementing a ban.

The Fostering Network, meanwhile, last week urged local authorities and agencies not to place under-fives and disabled children with foster cares who smoke, pointing out the potential for litigation from children brought up in a smokers’ home who develop smoking-related illnesses.

For Nick Johnson, chief executive of the Social Care Association, the reason there are difficulties is simple.

“When the smoking ban was being thought up, nobody thought of us. People were thinking of pubs, hotels, railways stations. Social care was not even in the minds of ministers and [the potential problems] are the collateral effect of that. It is as if they have just suddenly gone ‘oh God, how is it going to effect them?’.”

Psychiatric wards

Mental health services and psychiatric wards are likely to suffer some of the most disruption. While the number of smokers in general, currently around a quarter of the population, is on the wane, research suggests anything between 50% and 80% of mental health service users smoke.

Mental health units will be exempt from the ban until July 2008. Until then, service users can smoke in their room or another designated space. But regulations set out that the exemption is not automatic – it must be granted by the “person in charge of the unit”.

According to Sophie Corlett, director of policy at Mind, anecdotal evidence suggests some hospitals are not planning to designate the rooms, effectively making their hospitals smoke-free in line with the rest of their trusts. “I am sure it will cause some disruption. Particularly when a person has been detained against their will and is at a crisis point, it seems a harsh and unnecessary infringement on their right to a private life,” she says.

While service users must be encouraged to quit smoking, Corlett says, the law should have gone the same way as in Wales, where mental health units can apply for a timeless exemption.

Litigation from service users seems sure to follow. One patient at Rampton secure hospital, Terrence Grimwood, is already suing Nottinghamshire Healthcare NHS Trust under the Human Rights Act 1998 after it introduced a ban in March.

Lawyers for another mental health service user, meanwhile, are planning to bring a case against the Department of Health, claiming that he is being unfairly treated compared with those living in prisons and care homes, where exemptions are not time-limited.

According to a survey by the King’s Fund last year, only 10% of staff working in mental health wards backed the ban. And Paul Corry, head of public affairs at mental health charity Rethink, says he has anecdotal evidence that staff use cigarettes as a way of controlling service users, and believes enforcement of the ban could well be a problem for staff.

“Research shows the prevalence of street drugs available on wards, with one study showing the cannabis was on every single ward. Staff can’t control that at the moment, so how are they supposed to prevent smoking?”, he says.

Home visits

Domiciliary care workers could also find themselves in difficulty. Care staff visiting the home of a smoker will be entitled to ask to use a room that has been kept smoke free for two hours, but the client retains the right to say no.

Councils such as Liverpool have gone further than the law, stating last week that it wants residents not to smoke for half an hour prior to prearranged visits to their homes by council employees.

Nick Johnson argues that the law unfairly places the burden on the employee, and says agencies and authorities need to take responsibility for asking clients to keep the home smoke free if the staff member requires it.

But he warns against “using bricks” to tackle a sensitive issue, and urges councils to be realistic when it comes to balancing its duties of care towards staff and service users.

Residents in care homes, who will be able to smoke in designated areas, could find the first few months of the ban confusing, according to Annie Stevenson, senior policy adviser at Help the Aged. But she says staff must focus on “keeping up a dialogue” about the ban. “It is important to remember not to infantilise anybody and that we are dealing with adults,” she adds.

Children

With foster carers’ houses considered private under the act, councils could well be facing problems with future placements, according to the Fostering Network.

It has drawn up a policy document recommending councils and fostering agencies factor whether a foster carer smokes before placing a child and warns of future legal action if the child either develops a smoking-related disorder, or claims to have taken up smoking after being influenced by carers.

It is also recommending social workers must never smoke around or even in view of children and young people.

The Fostering Network’s deputy chief executive, Raina Sheridan, says the network is not recommending children be removed from existing placement.

“We are saying if you are going to place a two-year-old in a long-term fostering placement you have to look at the long-term health of the child. Ten years ago nobody would have dreamed we could introduce a smoking ban. It’s about changing culture and trying to influence what becomes acceptable.”

The smoking ban

What will it mean for social care?

The ban, beginning at 6am on 1 July, will prohibit smoking in almost all enclosed public spaces in England. Care homes, hospices and prisons (including young offender institutions) will be exempt, with residents allowed to smoke in designated areas – either their bedrooms, cells or clearly-marked rooms. Mental health units will be exempt until July 2008, while smoking is already banned in secure training centres. Although children’s homes are considered a public place under the Health Act 2006, the Department for Education and Skills and experts say guidelines already “discourage” smoking, and campaigners believe there will be little or no disruption. Foster carers will be entitled to smoke in their homes.

How will it be enforced?

There will be a £50 fine for a breach, or £200 if the fine is not paid and goes to court. About 1,200 council enforcement officers have been trained to implement the ban but the Local Government Association says the approach will be “educational and non-confrontational” and that it expects enforcement action “only when efforts to encourage compliance have failed”.

The experience elsewhere

In Wales, the ban became effective on 2 April. According to the LGA, only 25 breaches have been reported by councils since its introduction and no fines have been issued. In Scotland the ban was introduced for enclosed public spaces in March 2006. In Northern Ireland, it was introduced on 30 April 2007, where councils reported an overall compliance rate of 99.5%.

Sheridan: “If you are going to place a two-year-old in a long-term fostering placement you have to look at the long-term health of the child”

Further information
The Fostering Network
Social Care Association
Mind