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Is your site-wide smoking ban air tight?
19 June 2009
The challenge
We recently advised a Foundation Trust that had received a
freedom of information request (FOI) asking for both proof of the
authority under which the Trust had brought in the ban, and a copy
of the Board Minutes confirming it. As the request had been made
through a solicitor, the Trust did not know if the request had been
made on behalf of an employee, a patient or a member of the
public.
The background
As to authority for the ban, the Health Act 2006 offers little
guidance as it focuses on enclosed premises and does not cover open
areas. In this context however, is it perhaps something of a
distraction? The Act merely introduced compulsory measures for
certain premises together with an enforcement regime. Other forms
of smoking bans existed before 2006.
As owners of their land, NHS Trusts and Foundation Trusts are
free to deal with it as they see fit, subject to any restrictions
from the Department of Health or Monitor respectively. There are no
such restrictions which prevent operational management in this
regard and a site wide smoking ban should therefore be viewed in
the same way as say, a one way system to traffic or parking
restrictions.
Human rights
But smoking is an emotive issue!
The introduction of the ban was not without its challenges and
criticisms, viewed by the pro smoking lobbyists as being an
imposition too far by the ‘nanny state’. A Trust imposing a ban
seeking to extend this prohibition might therefore invite an
infringement of liberties challenge.
However, it is unlikely this would be successful. It has been
held that smoking is not a human right when the impact of a smoking
ban on mental health patients was considered¹.
Enforcement
Therefore, whilst a Trust, or indeed any landowner, has the
power to implement its own smoking bans, it should not forget that
outside areas are not automatically covered by the Health Act 2006.
Therefore, until hospital grounds are designated smoke free, under
Section 4.1 of the Act, the enforcement provisions will not apply.
It will be for the Trust itself to ensure compliance with the ban
and to consider appropriate penalties.
Conclusion
Trusts with site-wide smoking bans, or those wanting to
implement them, should therefore continue to do so but should
ensure they comply as closely as possible with the operational
requirements of the Health Act 2006.They should also ensure that
decisions relating to the ban are properly documented and
authorised in Trust Board Minutes and that there is adequate
signage around the grounds notifying visitors of the
restrictions.
¹ The Queen on the application of G v Nottinghamshire Healthcare
NHS Trust
The Queen on the application of N v Secretary of State for
Health
The Queen on the application of B v Nottinghamshire Healthcare NHS
Trust
[2008] EWHC 1096 (Admin)
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