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 cessation strategies and treatments

1. Giving up is harder if you have an anxiety disorder.

Yes I can believe that, especially when people are under more pressure to quit precisely at those times when they are being treated for other mental illnesses.

2. Royal College of Physicians recommends prioritising those with mental health problems for smoking cessation treatments.

Well yes, I can see that they want to ensure that mental health patients have the same access to smoking cessation services as everyone else, and that they have worse physical health records in which heavy smoking might play a part. However the requirement to stop smoking at times of crisis imposed as a national strategy creates an agenda that does not necessarily prioritise the patient's mental health: indeed the patient's longevity is a higher priority than helping to resolve the patients' mental and emotional state. Yes it may be a worthwhile goal to live longer, but in the chaos that comes with a mental health disorder, meeting other people's priorities, however well intended, should be less important than addressing the mental health disorder. This might be the right time to give up smoking (probably quite unlikely in most cases), but that should be a decision for the patient and the clinician, not a requirement.

RCP President Dinesh Bhugra talks of wanting to 'improve people's lifestyles and reduce health-risk behaviours, thereby preventing  physical illness and reducing the [financial] burden of mental illness on society'. Shouldn't his first duty be to reduce the burden of mental ill health on those directly afflicted and their families? He really seems to feel that any kind of illness is a result of bad lifestyle choice!

Prioritising people with mental health problems for smoking cessation treatments is perhaps inevitable, especially if they are in hospital, without the freedom of movement required to obtain smoking materials. I work part time in a supermarket and sell tobacco on every shift. Since starting work there in 2004, I've sold about three or four packs of Ni-Quitin. They are not an everyday purchase item, and are accessed more through pharmacies and GPs than shops. If patients are in a psychiatric hospital, and tobacco is unavailable, they may still not be willing recipients of nicotine replacement treatments but if they want any nicotine intake there's no choice. This situation is not tolerable on ethical grounds.

Since we know, from the first link as well as from common sense, that people with anxiety disorders find it harder to stop smoking, why do medics seem to think it's right to require it of patients when they are hospitalised?

Stigmatising smoking as mental health policy

Hat tip to Pat Nurse: this interesting piece introduces the reader to a frightening world.  It is a world in which the goal of smoking cessation for people with psychiatric conditions has been so prioritised that 'the burden of stigmatizing denormalization policies imposed on vulnerable populations (e.g., individuals living with psychiatric illness) is justified by the (potential) benefits to that population'. The piece discusses the topic more humanely than the 2007 British Medical Journal article that was the subject of this post.

Stigmatizing involves portraying someone's activity as blameworthy, ethically unclean, and is not a practice that one would associate with a health service that purportedly cares for patients' mental or emotional wellbeing. Says the article: 'Interestingly, denomalization programs are antithetical to public health efforts which are focused on eradicating stigma – particularly around eliminating negative public perceptions of people who use illicit drugs'.[bold added]

Applying stigma to discourage the use of a legal drug would seem to be counter-productive in a mental health context. But Bayer and Stuber have published a study entitled Tobacco Control, Stigma and Public Health: Rethinking the Relations, in which they do think the unthinkable:

Much will depend on the nature and the extent of stigma-associated burdens and on how the antitobacco movement deploys stigmatization as an instrument of social control. For example, policies and cultural standards that result in isolation and severe embarrassment are different from those that cause discomfort. Those that provoke a sense of social disease are not the same as those that mortify. Acts that seek to limit the contexts in which smoking is permitted are different from those that restrict the right to work, to access health or life insurance, or to reside in communities of one’s choice.

Although they can see how the consequences could be serious and even counter-productive for people with mental health conditions, they seem happy to let the tobacco control community proceed anyway!

The extent to which the deployment of stigmatization exacerbates already-extant social disparities or has long-term counterproductive consequences for the effort to confront the epidemic of smoking-related morbidity must also be considered. And what is true for smoking may have broader applicability for other individual behaviors deemed unhealthy such as "overeating" and illegal drug use. [bold added]

How can people trying to fight the stigma suffered by the mental health community bring themselves to employ stigmatizing policies in order to pursue a tobacco control target? Surely targets are confused when stigma is employed against people for smoking but fought for any other condition in which a patient finds herself? How does that clarify things for a patient who might also be fighting stigma as a result of her condition, poverty, status as a single parent or illegal drug user?

It is now apparently respectable to stigmatize people for their own good, especially vulnerable people: as the Neuroethics article explains: 'Since people living with psychiatric illness have the highest incidence of smoking-related adverse health outcomes, they also stand to benefit disproportionately from denormalizing efforts.' The actual damage suffered by these people is not known but is considered to be probably 'worth it' in the pursuit of a tobacco-free world.

I don't share the goal of a tobacco-free world. But as I go about my business, smoking in (at!) the pub once every three weeks or so but otherwise not really thinking about it, there are people, perhaps parents, who find themselves suddenly being treated involuntarily in a psychiatric unit for several days, anxious about themselves, worried for their children and families, tormented by a psychiatric illness. In the way of their recovery is the requirement that they give up smoking while in the middle of this unbelievable mess, and in receipt of further head-messing medication. In the way of their recovery is an official policy that they are stigmatized for their smoking habit, and made to feel humiliation (read the fifth paragraph of the neuroethics piece). Is this really the business of mental health care? And is this what our populations want for their friends and relatives in mental health care?

It looks more like a policy to kick people hard: the lower they feel, the harder they are to be kicked.