Select Committee on Health First Report

6  Exempted institutions

63. While Crown properties including prisons will not be covered by the scope of the Bill, it is expected that regulations made under the Bill will provide exemptions for other residential premises from the smoke-free provisions contained in the Bill. These will be establishments which are, in some way, a person's dwelling as well as a public place and a workplace. Prisons have the additional complication of housing a population which is forcibly detained, and in some cases with difficult or uncompliant behaviour. Similar problems apply in psychiatric institutions.

Prisons and other penal institutions

64. The prevalence of smoking among prisoners is currently very high. It is expected that crown properties such as prisons and the MOD estate, although not included in the Bill, will adopt measures in accordance with its spirit. HM Prison Service suggests that smoking prevalence in prisons is in the region of 80%, and therefore much higher than among the general population. In addition, it has been suggested that smoking is a firmly entrenched feature of the culture within the Prison Service. Access to tobacco is regarded as a privilege rather than a right, but this allows it to be used as a powerful tool of discipline. While the Prison Service tries to ensure that non-smokers do not have to share cells with smokers, it admits that this is not always possible because of overcrowding.

65. The Prison Service set out in a memorandum to the Committee its approach to reducing and controlling smoking in prisons.[60] It committed itself to a review over the next three months (from November 2005) to consider and make recommendations on how the Service could proceed towards creating smoke-free environments in prisons, and proposed the following likely options for discussion:

a)  All prisons, as workplaces, should become completely smoke-free, with no smoking allowed anywhere within prison buildings.

b)  Adult prisoners who wish to smoke should only do so in their own cells or while exercising in the open air.

c)  Smokers and non-smokers should not be forced to share a cell in which smoking takes place.

d)  All juvenile establishments should become completely smoke-free on the model of HMYOI Wetherby and HMYOI Ashfield.

66. Following the review and the agreement of its recommendations, the Prison Service intends to put in place an implementation plan to carry out the proposals on a local basis as part of the health development plans of the NHS/prison partnerships. These will go ahead regardless of Crown immunity.

67. It is argued that prisons and other penal institutions should be given exemptions from the provisions of the Health Bill on two principal grounds. The first is that they are dwelling places as well as workplaces, and that therefore prisoners have a right to smoke as they would have in their homes. The Department of Health suggested to the Committee that prisoners might be able to exercise this right under the aegis of the European Convention on Human Rights.[61]

68. However, the Director-General of the Prison Service, Mr Phil Wheatley, seemed less concerned about the human rights aspects of a potential ban and stressed more heavily the second reason for exempting prisons: that to deprive prisoners of their ability to smoke would create significant control problems in an already volatile population.

    It would create control problems in some establishments, there is no doubt about that. You do not know what you are in for in prison; you are deprived of most of the things you might ordinarily enjoy, and probably what you [the Committee] enjoyed last night are things the prisoners do not do, so to take yet another thing away will not be wildly popular with a group who are not always charming and pleasant in their behaviour, so I am not volunteering for a complete ban in every place.[62]

69. Although there are great difficulties for some parts of the Prison Service, other parts are already smoke-free. The Committee heard evidence from Mr Paul Foweather, the Governor of HMYOI Wetherby, an institution which has been entirely smoke-free since January 2004 and which was subsequently given a National Clean Air Award. He explained that, after an in-depth study, he took the decision to make the establishment smoke-free on the grounds that he was obliged by the Health and Safety at Work Act 1974 to ensure the safety of his staff at work, and also because there were issues particular to juveniles in custody concerning exposure to smoking (some of the trainees in the care of the Prison Service are fifteen years old and therefore could not legally purchase tobacco outside the confines of their incarceration). However, Mr Foweather emphasised that a ban on smoking had to be accompanied by a comprehensive support network to reinforce the smoking cessation programme. He concluded that "I have now got a smoke-free environment which is healthier for staff, it is healthier for trainees, and there are some spin-offs for the juvenile agenda inasmuch as 69% of my trainees say that they have tried to stop before and been unable to".[63] Nevertheless, he acknowledged that it would not have been possible to implement the policies he had introduced at Wetherby across the Prison Service; in high-security establishments he suggested that the "decision would have been even harder and much more difficult to impose because the risks would have been significantly greater".[64]

70. The Home Office expressed the view that prisons could not reasonably be expected to be treated in the same way as other workplaces. The Under-Secretary of State for the Home Department, Fiona Mactaggart MP, told the Committee that the Home Office had concentrated on making the working parts of prisons smoke-free, on ensuring that smokers and non-smokers did not have to share cells and on reducing the prevalence of smoking in prisons through smoking cessation programmes. However, she conceded that overcrowding meant that it was not possible to guarantee that a smoker and a non-smoker would not share a cell, noting that the Prison Service currently housed 77,471 people, above its certified normal accommodation.[65] She concluded that "it is difficult for us to be legally obliged in every part of a prison to impose smoke-free areas".[66]

71. One of the reasons that the Government is reluctant to ban smoking in prisons is the high prevalence of smoking; if fewer prisoners smoked, exemptions would be unnecessary. The Minister explained that smoking cessation programmes in prisons were carried out in partnership with general health provision for prisons; this was increasingly provided by primary care trusts as part of a programme of public healthcare. She acknowledged that there was progress still to be made in this regard.

    Am I satisfied that some of the other things, in terms of smoking reduction and ensuring that smoke-free areas are effectively managed and so on? No, I think there is a distance to travel. I think we have to recognise that in the sets of pressures that the Prison Service is under this has not always come up as high as it should […] we can make quite significant progress on this, and we must.[67]

However, denying that lack of success in smoking cessation made prisons unattractive partners for primary care trusts, she countered that prisons had higher success rates in terms of smoking cessation, basic literacy qualifications and other targets than the general population.[68]

72. We acknowledge that prisons represent a particular challenge in terms of smoke-free legislation due to the nature of the prison population. We are not, however, persuaded that preventing SHS exposure in prisons is any less a priority than any other workplace, or that the high prevalence of smoking among prison inmates is either a justification for exemption from the legislation or justification for the continued exposure of staff or prisoners to SHS. Rather, we see the high prevalence of smoking as evidence of a substantial and currently unmet need for effective smoking cessation services in prisons, and a possible failure of duty of care to both prisoners and staff. Furthermore, simply exempting prisons from the decision that workplaces should be smoke-free is unsatisfactory since it will provide no impetus for the Prison Service to go further in working towards increasingly smoke-free environments within prisons.

73. We recognise HM Prison Service's intention to work towards a smoke-free environment within prisons but are not persuaded that there is any reason why the policies applied in most prisons should be any less comprehensive, or implemented any later, than those for any other workplace. However, we also recognise that compliance may be difficult to achieve in some circumstances. From the date that the legislation comes into force in England, all smoking at work by prison staff should cease and the Home Office should set a target of making the interior of all prisons smoke-free. Prisons should maintain the power to make special provisions for individual prisoners in high-security institutions who are particularly difficult to manage, but this provision must not involve the exposure or staff or other prisoners to SHS. Smoke-free policy in prisons should be supported by the provision of full smoking cessation support to all smokers who want to stop smoking.

74. We see no justification for any exemption for Young Offenders' Institutions. HMYOI Wetherby is an example of good practice which should be applied throughout all similar institutions. The Home Office should set an early target date for making all Young Offenders' Institutions smoke-free.

Psychiatric institutions

75. Smoking prevalence among the mentally ill, and especially among those with severe mental illness who are in some kind of institutional care, is also very high. The pressure group Rethink suggested that it might be as high as 70%, which would make it of the same order of magnitude as the prevalence among the prison population.[69] There are other special circumstances attendant on those with severe mental illness; they can be detained against their will, and, unlike people with other health problems, they can also be restricted in their movement, meaning it is not always possible for them to smoke in an unenclosed public area.[70]

76. It is also argued that people suffering from severe mental illness should not be subject to a smoking ban. Rethink noted that "people with severe mental illness can very often have problems with their desire to give up smoking". Moreover, some of the drugs used in smoking cessation, such as Zyban, can be unsuitable for those taking anti-psychotic medication.[71]

77. On these grounds, Rethink proposed that psychiatric institutions be exempted from the ban on smoking in the workplace contained in the Health Bill, and that a longer-term approach should be adopted instead.[72] Mr Paul Corry, Rethink's Director of Campaigns and Communication, told the Committee:

    I think it is difficult to imagine a situation at the moment where you could introduce a complete smoking ban in all psychiatric units given that a significant proportion of the people who are using them will be there under compulsion. However, what I do think we need to do is move from a situation where we are today to a point in the future where we have a complete smoking ban and that will require specific targeted interventions for people with severe mental illness to help them and encourage them, rather than coerce them, to give up smoking.[73]

78. Others, including the Royal College of Nursing, did not agree with Rethink's approach. Mr Ian Hulatt, the RCN's Mental Health Adviser, explained to the Committee that to exempt psychiatric institutions from a ban on smoking would only serve to exacerbate existing health inequalities. He noted that people with severe mental illnesses such as schizophrenia will die ten years younger than the general population, are twice as likely to be obese and twice as likely to suffer from diabetes.[74] While he acknowledged that there were some situations in which patients suffering from severe mental illness might not be suitable for immediate smoking cessation, he reiterated that the control of smoking in psychiatric institutions was both achievable and necessary, concluding that "it needs to be done sensitively, but it can be achieved".[75]

79. The Committee also heard evidence from Mr Paul Thain, Director of Modernisation and Strategic Development for Norfolk and Waveney Mental Health Partnership NHS Trust. Mr Thain's Trust introduced a smoking cessation policy in April 2004 which prohibited smoking on its premises. He explained that the reasoning behind the policy had been twofold: firstly, to reflect the Trust's responsibilities as an employer under the Health and Safety at Work Act and afford protection to its staff from the harmful effects of SHS; and secondly, to support and help those patients with severe mental illness who would have additional health difficulties if also addicted to tobacco. He went on to say that there were certainly circumstances under which smoking was allowed. Patients who were smokers when they came under the care of the Trust had their smoking recorded on their care plan as a clinical issue and had that clinical issue addressed at an appropriate time, before which point they would be permitted to smoke, though only in unenclosed public places. Mr Thain noted that the success of the programme meant that the Trust was considering going completely smoke-free. In view of the experience at Norfolk and Waveney, Mr Thain did not support the case for psychiatric institutions being exempted from smoke-free legislation.

80. High levels of smoking in psychiatric institutions are not inevitable. The experience in Norfolk and Waveney is an example of what can be achieved by a creative and positive approach in a difficult environment, and a model of good practice which can be applied to all other institutions. Therefore psychiatric institutions should not be granted a simple exemption from the smoke-free provisions of the Health Bill. An early target date should be set for making such establishments smoke-free, with separate outdoor areas (secure if need be) set aside for patients to smoke at the minimum risk to staff and other patients. In addition, measures should be put in place to tackle the high prevalence of smoking and challenging targets set for its reduction. Psychiatric institutions should become smoke-free workplaces for staff along with other NHS premises by the end of 2006.

The Ministry of Defence

81. The Ministry of Defence will not be bound by the provisions of the Bill due to Crown immunity.[76] Nevertheless, it welcomed the broad thrust of the Government's policy of banning smoking in public places and workplaces, and in its response to the Department of Health's consultation stated that the proposals outlined in the Health Bill "sit very well with our policy of a carefully managed cessation of smoking, and also with our healthy lifestyle and fitness strategies".[77] The MOD also expressed its determination to abide by the spirit of the legislation, but cautioned that there would be some areas which would require either derogation from parts of the legislation or interpretation in a specifically military context.

82. The MOD's concerns were in two main areas. The first focused on circumstances in which a prohibition on smoking might impair operational capability; the second revolved around the need to balance the general aim of a smoke-free workplace against the individual's right to smoke in his or her private dwelling, in circumstances in which the workplace and the private dwelling were essentially the same. The Deputy Chief of the Defence Staff (Health), Vice-Admiral Rory McLean, told the Committee that, in attempting to get the balance right, the MOD has "a golden rule that we have been developing, and we have been doing this for some time, and the golden rule is that we will protect the rights of non-smokers not to have to inhale the smoke of others".[78]

83. In terms of operational capability, the MOD noted that health and safety standards on UK sovereign bases were, under normal circumstances, at least as rigorous as those required by UK law. However, under circumstances in which, in order to maintain operational effectiveness or to comply with local legislation, it would not be practicable to comply with UK legislation regarding smoking in the workplace, the MOD suggested during the consultation that legislation should empower the Secretary of State for Defence to issue a certificate of exemption from smoke-free regulations "in the interests of national security or operational capability". It also proposed that provision be made for the Secretary of State to revoke such exemptions on issue of a further certificate at any time.[79]

84. With regard to exemptions for premises which were analogous to an individual's private dwelling space, the MOD sought these for three main categories of location:

a)  Single Living Accommodation; the MOD expected to be allowed to implement minimum guidelines which reflected the rigour of the legislation but which allowed local commanders a degree of flexibility in dealing with long-stay single accommodation, on the model of the proposals for student residences. Under questioning, Vice-Admiral McLean stated that it was the MOD's intention to segregate those in multi-accommodation into smokers and non-smokers, and where such segregation was not possible that it would be the presumption that accommodation should be smoke-free and smoking should only be allowed outside;[80]

b)  Submarines; in its consultation response, the MOD noted that submarines could be on operational deployment for periods of several months, the vast majority of which time would be spent submerged. Given that it would be impossible to provide separate living accommodation or an 'unenclosed' smoking area, smoking is currently permitted on submarines (in two compartments, one forward, one aft), but the MOD only requested a temporary derogation beyond December 2006, as it was moving towards an entirely smoke-free submarine fleet, which it intends to implement in 3 or 4 years' time;

c)  Royal Fleet Auxiliary Tankers; the MOD noted that it was not feasible on safety grounds to allow smoking on the weather deck of all types of vessels, Royal Fleet Auxiliary Tankers in particular, and therefore wished to make alternative arrangements in those limited instances, such as the establishment of designated smoking compartments.

85. In view of the different legislation regarding smoking in the workplace and public places in different parts of the United Kingdom, Mr Chris Williams, Finance and Secretariat Branch Leader at the Ministry of Defence, told the Committee: "Because we know Scotland is going to implement their regulations first, that we will be taking the implementation date for us as effectively the Scottish date [26 March 2006]".[81]

86. We welcome the Ministry of Defence's commitment to controlling smoking in the workplace, and recognise that the MOD is already working towards creating more smoke-free environments. We also welcome the MOD's 'golden rule' that non-smokers should not be exposed to other people's smoke. However, we are not persuaded that MOD workplaces should be treated any differently from other workplaces, and are concerned that exemptions in, for example, submarines will lead to continued, avoidable and unnecessary exposure of service personnel to SHS.

87. The Ministry of Defence should eliminate all smoking in the workplace and in public places. Smoking should not be permitted in shared living accommodation or in communal areas of living quarters in any circumstances. Smokers should be allowed to smoke only in individual private quarters.

Hospices and other healthcare premises

88. The treatment of smoking in other healthcare premises is sometimes contentious. Choosing Health contained a commitment that the National Health Service, along with central government departments, would be smoke-free by the end of 2006.

89. The Committee received a memorandum from Help the Hospices, the national charity for the hospice movement, in which it was argued that hospices should be included in the exemptions granted by regulation. Help the Hospices contended that hospices were the private dwelling places of patients, and that to ban smoking would, for lifelong smokers, be contrary to the purpose of hospice care, namely "to improve quality of life at the end of life". Help the Hospices also maintained that it would not be practical to limit smoking areas in hospices to outdoor, unenclosed areas, as many patients were unable to leave their beds.[82] On the other hand, as the Chief Medical Officer argued, others think that hospices, like other healthcare premises, should be smoke-free in order to protect both patients and staff.

90. We recognise that there are difficulties. Nevertheless, staff in hospices should be afforded the same protection from SHS as workers in any other sector. Hospices should not be exempt from smoke-free legislation. Compliance with a smoke-free policy should be a condition of admission to hospices and there should be a comprehensive programme of smoking cessation support. Similarly, the staff of nursing homes should be afforded the same protection, and these premises should therefore be smoke-free.

91. We also considered the case of nurses and other care workers whose duties require them to visit patients in their own homes. The Royal College of Nursing believes that nurses should be protected. Mr Hulatt observed that "we have a situation where it is culturally considered almost inappropriate to challenge the client not to do it [smoke while being visited] and it is things like that that need changing".[83]

92. We agree with the Royal College of Nursing that care workers who visit patients in their own homes should be protected as far as possible from the harmful effects of SHS. To that end, employers should seek to ensure that patients are aware that they should not smoke while being visited, and that care workers should have the right to refuse to enter a home or room in which a patient is smoking.

60   Ev 95, Volume III Back

61   Qq 38-39 Back

62   Q 211 Back

63   Q 229 Back

64   Q 228 Back

65   Q 535 Back

66   Q 534 Back

67   Q 538 Back

68   Q 541 Back

69   Q 233 Back

70   See also Ev 15, Volume II. Back

71   Q 233 Back

72   Ev 72, Volume II. Back

73   Q 237 Back

74   Q 249 Back

75   Q 256 Back

76   Not printed. Back

77   Ministry of Defence submission to the Department of Health, Consultation on the Smokefree Elements of the Health Improvement and Protection BillBack

78   Q 475 Back

79   This provision does not apply since the Government's decision to exempt the Crown from the Bill. Back

80   Q 483 Back

81   Q 494 Back

82   Ev 46, Volume II Back

83   Q 257 Back

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