No smoking at Carstairs

A smoking ban at The State Hospital, Carstairs, Scotland's unit for treating violent offenders, will be implemented from 1 December this year.

The issue was covered last year in the Daily Record. The two accounts present different estimates of the numbers currently smoking at Carstairs. Marcello Mega in the Record refers to the ruling in favour of the smoking ban by a two to one majority, against two prisoners who had challenged it on human rights grounds. The judge who dissented, Justice Keane, felt that Parliament had not agreed in principle that certain categories of people should be prevented from smoking entirely as a consequence of smoking bans, and that this was not an outcome intended by the legislation (quoted here).

The Record records concern about a violent reaction from prisoners. The Scotsman's treatment is much lower profile, no staff byline, and does not appear to have interviewed anyone in connection with the story. It states that the ban was imposed following a consultation (not even a wide consultation). This is not reassuring.

Prisoners in private mental health facility may bring legal challenge to smoking ban

Inmates at a privately run secure hospital have been given permission to challenge a smoking ban, which covers the buildings and grounds of Chadwick Lodge Hospital in Milton Keynes.

A smoking ban covers indoor psychiatric facilities in England. In common with other inmates of secure units patients at Chadwick House may not get outdoors without an escort. Even if they do get out, they may not smoke. In granting permission to the patients for a judicial review, Lord Justice Silber acknowledged the importance of this issue.

A spokesperson for Chadwick Lodge referred to the Rampton Judgement, a similar judicial review of a smoking ban at Rampton Hospital, passed in 2009.  One judge in this case, Mr Justice Keene, dissented from the view held by the court and his views are laid out in the judgement from paragraph 92. At para 108, he says:

I readily acknowledge that, in assessing proportionality in a matter like this, weight has to be attached to the position endorsed by the democratically-elected body.  However, nothing put before this court demonstrates that Parliament ever appreciated that in reality the consequence of Regulation 10(3), the time-limit on exemption for mental health units, was likely to be a complete or virtually complete ban on smoking for those detained in secure mental hospitals.  There was no debate on the merits of such an outcome, which means that there has been no democratic endorsement of it.  

He continues (referring to Regulation 10, the exemption of psychiatric units from the smoking ban that expired one year after the smoking ban was introduced in 2007):

it seems to me that the prohibition in England on smoking in institutions like Rampton, a prohibition which results from the cessation of the exemption in Regulation 10 plus the security considerations applicable there, is more than is necessary to accomplish the public health objective of protecting people against second-hand smoke.  It is therefore disproportionate, and there is a breach of Article 8.

He is quite correct that blanket bans on smoking have been forced, on people who have no freedom of movement,  without any democratic endorsement, and that this was not necessary in achieving the public health objectives of the smoking ban.  There are of course many more arguments on both sides, but this seems fundamental.  Smoking bans have failed among the wider public too. It seems distasteful to force a smoking ban on someone just because you can: just because the courts have awarded you custody over this person for treatment purposes – even though the treatment s/he is receiving is not smoking-related. (The same argument applies to those people who want to criminalise smoking in apartment blocks, when they wouldn't attempt it on someone with a large house and private garden. It actually looks like victimisation.)

Since Mr Justice Keane wrote these words we know more about the difficulties in enforcing bans. We reported recently how many hospitals, having failed in their attempt to outlaw smoking on NHS premises, are rebuilding smoking shelters. People who smoke at hospitals may be visitors, patients or staff. Patients may be temporarily immobilised by being hospitalised but in general most of these people have much more freedom of movement than someone who has been held in a secure unit for any length of time.

It is also possible that smoking bans can adversely affect treatments of other kinds. People undergoing drug rehabilitation are another group of people that have more freedom of movement than people in secure units. This article reports that they are voting with their feet and not completing their programmes following the introduction of no-smoking policies.

Health authorities should consider not whether they want everyone to stop smoking but whether it is feasible to stop people from smoking, and especially whether it is fair to deprive people of nicotine in situations where, for their safety or that of the public, they can't just walk away.

Smoking banned at State Hospital, Carstairs

I'll have more to say about this travesty in due course, but for now, let's just applaud the wisdom of depriving inmates of Carstairs of tobacco, with nothing to support the idea but the idea that smoking is bad for you (and if it's bad for you it must be bad for people around you). Except the staff seem more concerned than relieved that this measure (to include the hospital grounds, inexplicably) is being introduced.

The Sunday Mail article records staff concerns, but is remiss in other ways. The detail of what people have done before being sent there are relevant only insofar as they portray particularly agitated individuals. Their violent misdeeds have been judged by the courts to be a result of mental disorder. Sadly this seems to have prompted one or two individuals to conclude these evil people should be allowed no privileges – after all, law-abiding people are not allowed to smoke.

All very well, but the only reason these incarcerated people are being deprived of any tobacco whatever is that there are people prepared to exercise the power to stop them smoking. For the good of their health? Any guesses what they might take instead? Twenty years down the line, if we record the longevity of smokers spending most of their life in prison before compared with after the ban, I don't mind betting we will find very little difference.

WHO GAINS?


You tell me.

The other thing that the Sunday Mail reported inadequately was the Rampton judgement south of the border. The prisoners did fail to convince two judges, but did convince a third judge, who set out his reasoning in the judgement under the other judges' conclusion. There is nothing in this article even mentioning the third judge.

I will find a link later (EDIT: here). But from memory, he made the sound point that a total ban in a hospital setting such as Rampton meant complete abstinence from tobacco for patients who were never allowed to leave the building, and since such complete abstinence had not been explicitly considered as an outcome, it could not be said to have been endorsed.