Patient wins smoking challenge at State Hospital Carstairs

This is today's good news. A patient at The State Hospital has won a ruling that his human rights were breached when he was prevented from smoking while an inmate there.

I think the result would have been better. For example, the judge, Lord Stewart, said that the plaintiff had saved a lot of money by not smoking, and therefore did not award him damages. He also did not criticise the principle behind the ban, although it is hard not to see that many others would have been detrimentally affected in the same way as the plaintiff. And he said:

"I also want to make clear that I am not endorsing the idea of a human right to smoke. There is no right to smoke in a legal sense."

No, if you think there should be an act detailing everything you are legally entitled to do. The presumption is usually that you can do things, not that you have to be awarded the right to do things.

But on the plus side:

Lord Stewart noted that if Mr McCann was a prisoner, he would be allowed to smoke in jail.

The judge said: "It may not be attractive to contemplate but I infer that the smoke-free policy has been imposed on mental health detainees and not on penal detainees simply because the latter are in a better position to defend their smoking habit whereas the former are not.

The judge added: "On the information available, I have come to the view, though with reluctance, that the decision to compel the petitioner to stop smoking was flawed in every possible way."

Lord Stewart said the decision should have been made with reference to principles set out in mental health legislation but was not.

He points out, in other words, that mental health detainees are 'picked on' in terms of legislation preventing them from smoking, because they are soft targets, and that those making decisions about the plaintiff's smoking had gone beyond the law.

In case anyone out there is still under the illusion that smoking restrictions are motivated by health concerns, this story should disabuse you.

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.

Asthma attack followed by call for tough action on doorway smoking, Cumbria

Every so often I despair of public attitudes on smoking, before reminding myself that a few thoughtless comments tacked on the end of a newspaper story does not represent humanity.

A patient's coughing fit was triggered as he entered the Cumberland Hospital via a doorway where people were smoking. Taking half an hour to recover, he considered that smokers should not be in the doorway, which is not an unreasonable point of view.

The only reason people are there is that they have been denied the comfort of a smoking area to sit down in. For some reason this is considered to be in everybody's best interests, including those patients who 'have' to exit the building for a smoke. Public outrage is expressed if anyone who dares to smoke when hospitalised continues to benefit from NHS care.

How simple can this get? The business of whether anyone smokes when s/he is ill is taken by the patient either alone or in consultation with his/her physician. It is not a hospital management decision. The decision of whether someone visiting hospital to visit a patient smokes is not even a clinical decision. Nor is the issue whether staff smoke. This is the only thing that approaches being a management decision, but a blanket ban on smoking during working hours seems to me peculiarly unwise.

It is absolutely none of the business of the general public.

The way to resolve the problem of smoking in doorways is to provide at the very least a comfortable  and robust shelter at the front of the hospital where it is easily reached by everyone including outpatients with mobility problems, and that provides a preferable solution to standing in a cold doorway. Seating and shelter would help. Coffee facilities in a proper room with comfortable seating would be even better. Nobody who is attending a relative they are anxious about wants to be stuck behind the hospital where they cannot be reached. Nobody in a wheelchair or on crutches will want to trail to the back of the hospital either. If you don't want smokers to be seen at the hospital by the world at large, give them a room that they will want to use. Just how difficult is that?

This is how to use 'nudge' properly. Give people a better alternative and they will choose it over an option that inconveniences everybody – or at least most of them will.

Here is some sense from a Czech legal expert.

It is often said that history repeats itself, but only rarely are we invited to look at the preponderant role of dogmatic ideologues in this recurring phenomenon. As always, they insist that the state should re-educate their fellow citizens by imposing their vision of what is “good,” and this is the case with anti-smoking activists, who are now leading the charge of the partisans of “progress.” Over the last few years, they have successfully campaigned for the introduction of increasingly severe anti-smoking legislation in most European countries, and in so doing, they have taken advantage of a widespread phenomenon in Western civilisation: the drift towards a nanny state and the growth of a culture that is hostile to even the slightest risk.

[...]

Experience has shown that social engineering projects that aim to curtail fundamental freedoms often have unexpected results and in most cases prove to be unqualified failures. This is the future that I foresee for the very strict repressive measures that the EU may be about to impose on smokers, who represent more than a third of the population of Europe’s member states. A few years from now, this kind of legislation could make smoking a symbol — and not just for smokers — of resistance to intrusive and paternalist public authorities and the relentless appetite for regulation in the EU, which is an increasing source of exasperation for a growing number of its citizens.

This observer sees any public health goals of the war on tobacco backfiring, reversing all the good that was done by tolerance.

Meanwhile the Third Estate has picked up the story of the ban throughout the buildings and grounds at The State Hospital at Carstairs: Scotland's secure hospital. Reuben points out that inmates/patients at Carstairs should have the dignity of choosing, just like the rest of us are meant to have.

Tactful and proportionate hospital smoking policies needed, so what happened?

Extract from minutes of Scottish Workforce and Staff Governance Committee, 14 May 2010 at Victoria Quay, Edinburgh

Mary Cuthbert and Lorna Renwick presented an update to the Committee on recent guidance regarding workplace anti-smoking policies in NHS Scotland. Cooperation with staff on the issues involved were agreed to be a priority for any effective lasting progress. It was pointed out that the NHS Healthy Working Lives Criteria [link added] would need to be adjusted, most usefully by considering the relevant rules of the European Network of Smoke-free Hospitals (ENSH),which considers a very holistic view of patient and staff data.

It was emphasised by the Committee that this area of debate is necessary to approach with care, not least because of the estimated 40,000 NHS Scotland employees who smoke and would be affected by any change to national or Board level guidelines. It was expressed that in practice whole-hospital-grounds smoking bans were in the main impossible to police and undeliverable. [emphasis added]

The need for staff to be treated consistently across NHS Scotland was underlined. The particular difficulty of dealing with care-in-the-community guidance was discussed. It was generally concluded that Board Policy for Staff on Premises needed to be re-examined. The Committee expressed firm, unanimous support for the principle of reduction of staff smoking levels, but reiterated that regulations would need to be both tactful, proportionate and implementable. The need to balance employee rights with any drive towards smoking cessation was emphatically asserted by all members. [emphasis added]

All this commendably prioritises the need for a consensual approach, and several weeks ago I would have thought it spelled good news. Yet three months after this meeting we had this story about NHS Grampian, this story about Ninewells Hospital Dundee, and yesterday this story about the Carstairs State Hospital. Why, when the health service staff and managers tell Scottish Government representatives unanimously and 'firmly' that smoking bans in hospitals don't work and cannot be implemented, and that equality, proportionality and tact are as important as smoking cessation, do we get more health boards insisting that smoking must cease in the grounds of hospitals (and probably just as much pressure on the issue of smoking cessation)?

More on Freedom to Choose (Scotland)'s challenge to smoke-free mental health services here.

Meetings of the group are listed here. Minutes of more recent meetings (August and November) don't appear to have been posted yet.

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.