House of Commons - Health - Written Evidence

Select Committee on Health Written Evidence

Memorandum by National Institute for Health and Clinical Excellence (NICE) (SP41)

1. SUMMARY

1.1 In this evidence we set out NICE's views on the government's proposals for legislating for smoke-free environments in enclosed public places and workplaces, which are contained in the consultation document, Consultation on the Smokefree Elements of the Health Improvement and Protection Bill. We discuss the evidence underpinning the proposals and make comments on some of the more detailed points raised in the consultation document.

2. ABOUT NICE

2.1 NICE assumed a new responsibility for developing public health guidance on 1 April 2005, when the Institute took on the functions of the Health Development Agency (HDA) to create a single, excellence-in-practice organisation, the National Institute for Health and Clinical Excellence (also to be known as NICE). The new organisation is responsible for providing national guidance on both the promotion of good health and the prevention and treatment of ill health.

2.2 NICE will produce guidance in three areas:

— Public health—the promotion of good health and the prevention of ill health for those working in the NHS, local authorities and the wider public and voluntary sector.

— Health technologies—the use of new and existing medicines, treatments and procedures within the NHS.

— Clinical practice—the appropriate treatment and care of people with specific diseases and conditions within the NHS.

2.3 NICE's public health guidance will be produced by its new Centre for Public Health Excellence and will cover both public health interventions and public health programmes.

3. THE EVIDENCE UNDERPINNING THE PROPOSALS

3.1 NICE strongly supports the proposed legislation's objective of "protecting persons from the health risks attributable to the exposure to second-hand tobacco smoke". As noted in the consultation document, the Scientific Committee on Tobacco and Health's (SCOTH) update on evidence about the impact of second-hand smoke concludes that it is evident that "no infant, child or adult" should be exposed to second-hand smoke, and confirms that second-hand smoke "represents a substantial public health hazard".

3.2 The unequivocal nature of these conclusions raises questions about whether there may now be a case for shifting the balance further in favour of smoke-free environments than proposed in the consultation, and adopting the approach to achieving smoke-free environments that produces the maximum health benefits. According to the analysis in the partial regulatory impact assessment in Annex B of the consultation document, the most effective of the four options considered in terms of public health impact is option 2—ie national legislation to make all indoor public places and workplaces completely smoke-free, without exemptions. The Chief Medical Officer has recently stated that he would like the government to introduce completely smoke-free enclosed public places and workplaces, as several other countries have done.[53]

3.3 Adopting this option would also avoid potential problems of equity and fairness. For example, it would offer complete protection from second-hand smoke to people who work in pubs and bars, compared to the more limited protection offered by the other options. Under any of the latter, protection would inevitably be patchy, raising questions about the fairness to workers in pubs and bars of arrangements under which the level of their exposure to second-hand smoke would depend on either their employers' interpretation of health and safety responsibilities or whether the local authority in which their workplace was situated had used powers to control second-hand smoke.

3.4 Furthermore, it would eliminate the risk that the government's favoured option might aggravate health inequalities. The consultation document acknowledged potential problems of equity by asking for evidence that the health benefits of the legislation may be less in poorer communities than in better-off communities. Recent evidence indicates that there may be such a risk. The findings of a recent BMA survey of a "snapshot" of local authorities suggest that many more pubs in the north, particularly in deprived areas, do not serve food and so would be exempt from the smoking ban.[54] Another study concluded that more pubs in the deprived areas of an English borough than in affluent areas would be exempt.[55] As tackling health inequalities is at the heart of the government's public health policy, it is essential that comprehensive data on the distribution of food- and non-food-serving pubs be gathered so that the potential impact on health inequalities can be assessed.

3.5 There are other advantages to option 2. In particular, it makes enforcement simpler and creates a level playing field for the hospitality industry. The British Beer and Pub Association (BBPA) has called for legislation to be applied equally across all sectors of the industry, if legislation is to be the government's preferred route.[56]

3.6 On the question of the extent to which public opinion should inform the proposals, the 2004 ONS survey of attitudes to smoking found that the largest increase in support for smoking restrictions was in relation to smoking in pubs, a rising trend from 48% in 1996 to 56% in 2003 and 65% in 2004.[57] There is also encouraging evidence from Ireland where support for smoking restrictions has grown since implementation of legislation there in 2004. Ireland's Office of Tobacco Control reports that 93% of the public, including 80% of smokers, now think that the law was a "good idea", and 96%, including 89% of smokers, think that the law is successful. Before introduction, 67% of the public supported the law.[58]

4. MORE DETAILED CONSULTATION POINTS

4.1 NICE agrees with the proposal to create regulation-making powers to allow the legislation to apply in places which may not fall strictly within the definition of "enclosed" in the legislation but where there is risk of harm from second-hand smoke due to the inevitable close grouping together of people. However, there may be difficulties in defining "close grouping" and "places" for the purpose of these powers, given that bus shelters, stadiums and entrances to workplaces are very different kinds of public place. We suggest that one defining factor might be whether there are people working in such places who might be exposed to second-hand smoke, as would be the case in sports stadiums.

4.2 NICE agrees that regulations should exempt individuals' private space in premises that act as an individual's dwelling. However,

— This should not be seen as discouraging commercial providers of accommodation, such as hoteliers, from reflecting population smoking trends in the proportion of rooms they designate as non-smoking.

— Public sector institutions which provide longer-term accommodation, should enable access to smoking cessation services and encourage residents to use them, as should private providers of services that include accommodation commissioned by public bodies.

4.3 We strongly support the objective of extending the concept of the smoke-free NHS to all aspects of NHS provision, including psychiatric hospitals and units. The HDA guidance mentioned in the consultation document points out that there should be no blanket exceptions for particular categories of patient and no exceptions for staff or visitors, although exceptions can be made for individual patients on a case-by-case basis. Case studies have demonstrated that mental health care trusts can go smoke-free.[59]

4.4 Employees in membership clubs should be entitled to the same protection from second-hand smoke as employees in other enclosed public places and workplaces.

4.5 As with the geographical distribution of pubs that serve food, there may be implications for the government's priority of tackling health inequalities in the distribution of membership clubs. This requires further investigation.

4.6 As noted above, the hospitality industry has argued against preferential treatment for any sector.[60]

4.7 Fines for proprietors of public spaces and workplaces who allow someone to smoke on the premises are 3,000 euros (around £2,000) in Ireland. Ireland's Office of Tobacco Control reports consistently high levels of compliance with the smoke-free legislation.[61] It does not comment on the role of fines in supporting the enforcement effort, but it is reasonable to infer that the level of the fine may have had an influence on proprietors' behaviour, alongside perceptions of the likelihood of inspection by enforcement officers. The Irish experience may be useful in determining what level of fine for failing to prevent smoking is likely to be most effective in the context of the expected enforcement effort.

14 September 2005