Prohibiting smoking outside hospital buildings: consultation analysis

Section 3: Exceptions

Question 4: Do you support the proposal that no specific hospital or type of hospital should be exempted under the definition of "hospital" in the Act?

Context - Hospitals

As amended, the 2005 Act defines the term "hospital" to include a) any institution for the reception and treatment of persons suffering from illness, b) any maternity home, c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation, and any institution for providing dental treatment maintained in connection with a dental school, and d) clinics, dispensaries and out-patient departments maintained in connection with any such home or institution.

The 2005 Act allows Scottish Ministers to provide that hospitals of a specific description are not hospitals for the purposes of Part 1 of the Act and the proposed offences. There would be no smoking offences around this type of hospital as it would be exempt.

Scottish Ministers considered the approach taken in implementing the smoking ban in public places under the prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 ("the 2006 Regulations") which banned smoking inside hospitals, hospices and psychiatric hospitals. The Regulations distinguished between hospices and hospitals, and exempted adult hospices and designated rooms in psychiatric hospitals from the ban.

Those Regulations were made under section 4 of the 2005 Act which allows Ministers to list types of indoor public space where the ban should and should not apply. Those Regulations use the same definition of "hospital" as section 108 of the National Health Service (Scotland) Act 1978 and define psychiatric hospitals as types of hospital. Hospices are distinct from hospitals as they are used for palliative care and so do not fall within the 1978 Act definition of "hospital". Section 4D of the 2005 Act gives Ministers discretion to provide that hospitals of a specified description are not to be regarded as hospitals for the purposes of Part 1 of the Act.

The consultation does not propose to exclude psychiatric hospitals from the definition of hospital and has not, in discussion with NHS boards, identified any other types of hospital that should be exempted from the requirement to have a no-smoking area.

Overview

Around three-quarters of respondents agreed that no specific hospital or type of hospital should be exempted under the definition of "hospital" in the Act (74%), Table A4. Among these respondents there was relatively equal support for the proposal among individuals and organisations.

There was, however, considerable variation by organisation type:

• Stronger levels of support were expressed by: educational institutions (100%), NHS (80%) and other organisations (75%).
• Lower levels of support were expressed by: other public sector bodies (40%) and third sector orgaisations (50%).

The most common themes that emerged from respondents who agreed that no specific hospital or type of hospital should be exempted under the definition of "hospital" in the Act have been summarised below.

Firstly, it was considered essential that the Regulations were applied across all "hospitals" as part of a key national "health intervention", and for the NHS to be viewed as an exemplar of health promotion and in supporting people to stop smoking. Ensuring "consistency" of approach and that "everyone is treated the same way" were also considered vital to minimise confusion and reduce health inequalities.

Secondly, while there was broad recognition that some "hospitals" might want an exemption (e.g. psychiatric hospitals and mental health sites were frequently mentioned, followed by hospices), the main points raised by respondents was that there should be no exemptions at all with reference made to the following:

• The strong correlation between poor mental health and smoking behaviour was highlighted, as was the importance of increasing awareness and uptake of smoking cessation support services among patients with mental health issues. Some pointed to existing research that shows giving up smoking could have "marked positive benefits for mental health" (e.g. reductions in anxiety, depression and stress).
• Others noted that that the physical and mental health and wellbeing of psychiatric patients were equally important considerations - an exemption "implies their (physical) health is somehow less important than other patients within hospitals".
• That no exemptions would protect all patients, staff and visitors from the health risks associated with passive smoking and second-hand smoke.

"The cultural shift away from smoking in the general population has not yet been echoed for people with mental health issues. It was estimated by the Royal College of Physicians and Royal College of Psychiatrists in 2013, for instance, that 'up to 3 million smokers in the UK, 30% of all smokers', have evidence of mental health issues and 'up to one million with longstanding disease'. Further, the high smoking rates in this group produces health inequalities that include high rates of smoking-related diseases and avoidable premature death".
ASH Scotland

"We believe that exempting certain types of hospitals would result in the health protections from ETS restrictions being applied unevenly to patients, staff and visitors across Scotland - a potential equalities issue".
Cancer Research UK

"Exempting mental health facilities would continue to widen inequalities by permitting health damaging behaviours to continue to disproportionately affect very vulnerable patients, whilst not permitting these behaviours on general hospital sites…. In mental health facilities and also in the case of hospices, we can provide alternatives to alleviate withdrawals as we would for other addictive substances such as alcohol".
NHS Lanarkshire

While a majority of respondents supported no exemptions, a variety of points or issues were raised by some of these respondents about psychiatric hospitals in particular:

• Many raised concerns around how the Regulations would be managed in psychiatric hospitals where patients, for example, can currently smoke in secure courtyard areas (e.g. often used by those who are sectioned or cannot leave the premises without being escorted). As the hospital is viewed as a "homely setting" for some patients, a view provided was that "they should be afforded the opportunity to smoke" in these areas.
• Issues around risk and security were frequently mentioned for patients and staff. Patients who could not leave their wards to go beyond the 15 metre perimeter, for their safety, or those on constant observations could be impacted negatively by the proposals. It was also noted that hospital staffing levels might be negatively affected (i.e. some patients require a staff member(s) to be with them when they leave the ward). Another respondent mentioned that staff alarms do not work once outside in-patient buildings.
• There would need to be "clear protocols and powers" put in place to support staff manage certain groups of patients that were not exempt from smoking (e.g. psychiatric patients).
• There were also comments made regarding patients who are denied smoking being less likely to agree to hospital admission, and that could impact on their mental health. Cigarettes are commonly used as a "de-escalation technique and to provide a calming effect to patients".
• Some support was expressed for designated smoking areas for those who are in hospital on a long term basis, and those in mental health facilities.

While not mentioned to any great extent, it was noted that it might be helpful to have insight into how the legislation takes into consideration the Mental Health (Care and Treatment) (Scotland) Act 2003 and Adults with Incapacity Act (Scotland), and that the Scottish Government could seek advice from the Mental Welfare Commission on this proposal.

A few respondents went on to highlight other buildings that could be included within the definition of "hospital" for the purpose of the Regulations. Those mentioned most often included:^[14]

• All medical centres and surgeries.
• GP Practices, community treatment centres, hospices and private hospitals - some of which are located on hospital grounds.
• Health and social care centres.

Around one-fifth of respondents did not support the proposal that no specific hospital or type of hospital should be exempted under the definition of "hospital" in the Act (21%), Table A4. Some third sector organisations were more likely to note opposition.

There was wide-spread reference among these respondents to the specific needs of psychiatric patients. Here, it was generally reported that there might be extenuating circumstances for certain "hospitals", and certain categories of patients, and/or that reasonable adjustments could be considered. In addition, there was also some reference to exemption for other "hospitals" that look after patients on a long-term basis (e.g. hospices, rehabilitation/care centres).

A number of points were raised by these respondents, namely that:

• It was noted that it might not be appropriate to consider all "hospitals" as the same, and that a one-size-fits-all approach might be neither practical nor managable. Flexibility and different approaches were therefore encouraged.
• Many highlighted challenges in explaining the Regulations to patients with mental health issues. For example, patients who lack capacity to understand the legislation and its implications, and who might not be able to make an informed choice regarding smoking cessation. Others noted that the changes might not be well-received by some patients.
• It was generally felt to be "unfair", "discriminatory" or "inhumane" to remove access to nicotine products from people who are detained under Mental Health (Care & Treatment) (Scotland) Act e.g. patients who are not free to leave hospital grounds or ward.
• Removing access to nicotine products for certain clients/patients might also bring about "unnecessary suffering" to these groups. There was broad reference to the potential for "increased stress and anxiety" among people with mental health issues, people receiving end-of-life care, people who are infirm or immobile during their convalescence or medical rehabilitation, people with dementia and/or people who are addicted to nicotine.
• There was therefore strong support for access to appropriate smoking areas for certain clients/patients that are located away from entrances and windows.
• If any exemptions were to be agreed by Scottish Ministers, patients should still be connected into smoking cessation support services, as appropriate.

"The current exemption for psychiatric hospitals should be retained. Patients acutely unwell lack the capacity to consent to treatment, therefore they are often unable to make an informed choice regarding smoking cessation. They are currently under compulsory measures and have their liberty restricted meaning that unless there is an ability to control the environment to a very high degree there will be either an increased level of risk (e.g. absconsion) or damage to the relationship between patient and the hospital team treating them as they will challenge their restrictions. This will lead to incidents with some patients and responses such as restraint".
Mental Health Network Greater Glasgow

Question 5: Do you support the proposal that no-smoking areas will only apply to buildings used wholly or partly as a hospital?

Context - Hospital Buildings

The 2005 Act defines a "hospital building"^[15] as a building situated on hospital grounds. These buildings will be the buildings with no-smoking areas outside them. To distinguish between ancillary or non-medical buildings and buildings which are used to treat or care for patients, it is proposed that a building will not be considered a hospital building for the purposes of these Regulations if it is not wholly or partly used as a hospital, and would therefore be exempt for a no-smoking area. Examples of buildings which would be excluded from the definition include buildings used:

• As a hospice.
• To deliver support to the hospital such as laundry, catering, storage, heating or administration buildings.
• For teaching, learning or research.
• To provide medical, pharmaceutical, ophthalmic and other services to non-resident persons.

The 2016 Act allows Scottish Ministers to provide that buildings of a specific description are not hospital buildings for the purposes of the proposed Regulations. There would not be a no-smoking area around these buildings as they would be exempt.

For further clarity the Scottish Government propose to regulate to say that buildings are not hospital buildings if they are not:

• Used for the reception and treatment of persons suffering from illness
• A maternity home.
• Used for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation.
• Used for dental treatment and maintained in connection with a dental school.
• A clinic, dispensary or out-patient department maintained in connection with any building falling within the four aforementioned bullet points.
• Used to provide a corridor, walkway or other link between buildings used for any of the purposes mentioned in the bullet points listed above.

From engagement with NHS Health Boards on whether any buildings of a specific description should be exempted, the Scottish Government does not believe there is any need to include any further specification in the Regulations.

Overview

Responses to Question 5 were relatively mixed.

Just over half of respondents supported the proposal that no-smoking areas will only apply to buildings used wholly or partly as a hospital (53%), Table A5. A higher proportion of individuals (54%) than organisations (42%) agreed with the proposal. There were also varied views by organisation type, for example:

• Stronger levels of support was expressed by third sector organisations (63%).
• Lower levels of support were expressed by educational institutions (0%) and other organisations (25%).

The vast majority of respondents that supported the proposal did not provide any wider commentary. Where comments were made, the main points raised were that:

• A preference was expressed for the Regulations to apply to all NHS buildings (i.e. any building deemed as part of a hospital), or that there should be no smoking allowed on the entire extent of hospital grounds.
• Further clarity and detail would be important to support the implementation of the proposal. For example, clarity on how the Regulations would work in practice where, for example, hospital sites have "hospice services integrated into the main hospital building". Questions raised included whether areas such as this would be covered by the exemption rule, and if so, where would patients be able to smoke (e.g. in the department or in the garden). Another example was that if certain buildings are exempt, it could cause confusion (e.g. "a visitor who is visiting the hospital for the first time may see people smoking at an exempt building and then be issued with a fixed penalty notice when smoking at the main hospital").
• The Regulations could also apply to wider healthcare establishments (e.g. GP practices, dentists, health centres), and/or other public buildings.
• A couple of respondents made reference to the need for clearly designated smoking areas outside of the 15 metre perimeter (and appropriate sign-posting), or raised concerns about the capacity of relevant officers to implement the legislation.

"It could cause confusion as people will not know what buildings they can and can't smoke, and maybe if a no-smoking policy is to be brought in its best to be brought in to all NHS buildings to prevent confusion".
Individual

"In total, there were a 194 comments on this proposal. Over 60% (n=123) of respondents felt that this should extend to all properties. Specifically responses stated all health premises, all NHS buildings and health facilities including dentists, and GP practices. Many within these comments suggested they would like the proposal to consider all public buildings".
NHS Ayrshire and Arran^[16]

"We would like to see provision made in this legislation, or future legislation, to be able to apply this approach to other publicly owned buildings and spaces such as schools, health centres, council offices, play parks, sports and recreation facilities".
NHS Lanarkshire

Almost 40% of respondents did not support the proposal that no-smoking areas will only apply to buildings used wholly or partly as a hospital, Table A5. Organisations, and in particular educational institutions (100%) and other public sector bodies (60%) were more likely to not support the proposal than individuals.

The main feedback from this cohort of respondents was predominantly that no-smoking areas and perimeters should apply to all NHS buildings situated on hospital grounds, including any heath care, service and administrative buildings (i.e. all NHS buildings regardless of their use).^[17]

"If ancillary buildings are close to "hospital" buildings then anyone walking past who does not wish to be exposed to smoke may have no choice".
Individual

"We believe that all NHS property should be no smoking. This includes NHS‐owned properties which include: primary, secondary and tertiary care; clinical and management facilities; and other services including ambulance stations/garages, laundries, catering, IT, pharmacies, etc".
Royal College of Paediatrics and Child Health Scotland

"Covering all hospital buildings would have the added benefit of contributing to workplace health improvement. Planning in support of implementation of the legislation should involve engagement with local and national Healthy Working Lives teams to ensure maximum effectiveness".
NHS Health Scotland

A number of related points were raised, namely that:

• When determining which types of building should be excluded, it was noted that consideration could be given to the impact of permitting smoking outside some occupied buildings while prohibiting smoking outside others - "It would be prudent to apply the extended prohibition at the perimeter of all occupied buildings on a hospital campus".
• Those visiting and/or working in the buildings who are proposed to be excluded from the definition deserve the same level of protection from exposure to second-hand smoke as patients, visitors and staff entering, leaving or walking past buildings used wholly or partly as a hospital - "this could constitute an equalities issue".
• Excluding some buildings could cause confusion for staff, patients and visitors about where Regulations apply on hospital grounds and/or make communications and enforcement much more difficult. It might inadvertently make clear messaging around implementation more challenging and/or contribute to a lack of consistency in how the Regulations are applied.
• People who smoke might simply cluster or congregate outside specific buildings - it could create a displacement issue. For example, people who smoke outside hospital buildings could move to smoke outside ancillary or non-medical buildings instead, including those which have an overhang or canopy (creating new "impromptu smoking shelters").
• It risks undermining the Scottish Government's aim of de-normalising tobacco use on hospital grounds, and promoting NHS Scotland hospitals as health promoting health environments.
• A further point was that due consideration of the practicalities of the "ability of the duty holder to comply with the requirements must be considered" (e.g. current definition would include pumping stations and storage outhouses). It was considered unreasonable to expect a duty holder to actively challenge smokers within 15 metres of all buildings on hospital grounds - "It is reasonable to exempt such buildings".

"Visitors to premises may be unfamiliar with the occupancy of the various buildings and the appearance of smokers in the immediate vicinity of certain buildings may hinder the process of culture change; the potential exists for a misconception to be created that smoking around buildings is an accepted behavioural norm at the premises with the prohibition not being enforced".
Glasgow City Council

"….several of the areas that are identified as not being used wholly or partly as a hospital are also those that contain concentrations of potentially hazardous or flammable materials so would raise other, practical concerns about compliance with health and safety legislation".
NHS Lothian

There was wider reference to applying the Regulations to GP surgeries, dentists, hospital staff accommodation, etc, as well as some support to apply the approach to any "public building".

Finally, while these respondents felt that no-smoking areas and perimeters could apply to all NHS buildings situated on hospital grounds, some went on to raise the issue of co-location of "hospital" buildings with other public buildings on the same site, as considered below:

"We have identified three issues pertinent to the issue of co-location of hospitals with other buildings on the same site which appear to be absent from the consultation documentation, and should be considered. These are:

Some hospitals impacted could be run by Integrated Joint Boards (IJBs), and thus may not be as exclusive to the NHS as previously experienced. For instance, the Green Curtain campaign was for 'NHS Grounds' only.

There is a question about how Local Authority buildings, where jointly managed health and social care services, should be treated under the legislation, e.g. care homes and administrative centres.

In instances where shared grounds occur with other institutions (such as a University), careful consideration should be given to how adherence and enforcement may be achieved at the non-clinical site. An instance of where this issue may arise is at the NHS Lothian Royal Infirmary of Edinburgh which is located on the Edinburgh BioQuarter".
NHS Health Scotland

Question 6: Do you support the proposal that public footpaths, cycle paths and footways should be considered hospital grounds for the purposes of establishing no-smoking areas outside the doorways of hospital buildings, and that the size of the grounds would extend up to 15 metres from the centre of doorways?

Context - Hospital Grounds

For there to be a no-smoking area outside a hospital building there must be hospital grounds. The extent of the no-smoking area will be limited, in many cases, by the extent of the hospital grounds. The Act defines "hospital grounds" as meaning the land in the vicinity of a hospital and associated with that hospital. This includes land used to access the hospital such as hospital footpaths, cycle paths and footways as well as hospital green spaces and hospital car parks.

The 2016 Act states that Scottish Ministers may provide that any specific types of land should or should not be considered to be "hospital grounds" and may otherwise elaborate on the meaning of "hospital grounds". There is one type of non-hospital land we propose to include as being hospital grounds for the purposes of establishing no-smoking areas. The aim of this is to help avoid smokers congregating around entrances to hospital buildings on what is public land, not otherwise considered to be hospital grounds.

This is the land in the vicinity of doorways to hospital buildings which open out onto public footpaths, cycle paths and footways such as main streets - where there is no ground which would currently reasonably be considered to be hospital grounds. This would not include public roads.

For public areas outside hospital doorways the proposal would limit the size of the "hospital grounds" to cover a no-smoking area up to 15 metres - measured from the centre of any hospital building doorway leading onto a public footpath, footway or cycle track. This would apply only where hospital building doorways do not obviously open onto what is already clearly regarded as hospital grounds. For areas of public land which we propose would become hospital grounds only in respect of their proximity to hospital building doorways, there would be no requirement on health boards to place notices at the entrance to these grounds.

However, those with responsibility and management of the hospital buildings would have responsibility for placing notices at the doorways themselves.

Overview

A majority of respondents supported the proposal that public footpaths, cycle paths and footways should be considered hospital grounds for the purposes of establishing no-smoking areas outside the doorways of hospital buildings, and that the size of the grounds would extend up to 15 metres from the centre of doorways (71%), Table A6.

Individuals expressed a slightly higher level of support than organisations. There were also varying levels of support by organisation type:

• Stronger levels of support were expressed by educational institutions (100%) and NHS (70%).
• Lower levels of support were expressed by other public sector bodies (40%), other organisations (50%) and third sector organisations (63%).

The vast majority of respondents that agreed with the proposal outlined above did not provide any wider commentary.

Where comments were made, the main point raised in support of the proposal was that smoking should be prohibited in areas classed as hospital grounds to limit exposure to second-hand smoke and the harm caused by passive smoking.

"Ensuring that the regulations are exercised this way will ensure that a greater proportion of patients, staff and visitors in Scotland are fully protected from the health harms of ETS exposure".
Cancer Research UK

A number of respondents commented on the proposal that the size of the grounds would extend up to 15 metres from the centre of doorways. The main feedback was that it should either extend beyond 15 metres or apply to all hospital grounds.

"Support the idea that public footpaths etc should be included, but the distance of 15 metres from the centre of doorways is not nearly long enough. Smoking should be banned throughout hospital grounds."
Individual

Wider feedback included the following points:

• It would seem a "reasonable", "proportionate" or "sensible" approach to include those areas/routes that intersect with, or lead to, where people enter or leave hospital buildings.
• Including these areas could make it easier to explain to patients, visitors and staff, and easier to enforce. However, a few respondents raised concerns that people would simply smoke "outside the exclusion zone".
• Including public footpaths, cycle paths and footways could promote physical activity and increased levels of "active travel".
• As with earlier questions, some respondents suggested the provision of designated smoking areas - "areas and signage as to where people can smoke rather than non-smokers having to walk through smokers and exposing them to second-hand smoke".
• That there would need to be further exploration of the implications of this proposal, including resource implications, as illustrated by the respondent quotes below.

"In principle COSLA supports the intentions to include the land in the vicinity of doorways to hospital buildings which open out onto public footways such as main streets, creating a smoke free environment for those using hospital buildings and aligning to our commitment to reducing the use of tobacco across the population and experience of second-hand smoke. We would however require early and ongoing dialogue and collaboration on the implications of this for our members. Any additional requirements on Local Government to implement the legislative provisions will need to ensure that the enforcement requirements do not place an additional financial burden on local authorities, and if it does, the financial memorandum accompanying the Bill should take account of the above issues. COSLA officers would like to continue to work with Scottish Government colleagues to help further this aim.

"COSLA would also request that Scottish Government work closely with the representative bodies of Trading Standards and Environmental Health within Local Authorities in Scotland (SCOTSS and SoCOEHS) to ensure that the proposed changes are supported and considered by all those who will have a responsibility for successful implementation".
Convention of Scottish Local Authorities (COSLA)

"However the resource implications for local authorities enforcing the legislation in these areas must be considered and appropriate funding made available as required. Regular engagement with those services implementing the legislation is encouraged, through the Society of Chief Officers of Environmental Health in Scotland".
Royal Environmental Health Institute of Scotland

Around one-quarter of respondents did not support the proposal that public footpaths, cycle paths and footways should be considered hospital grounds for the purposes of establishing no-smoking areas outside the doorways of hospital buildings, and that the size of the grounds would extend up to 15 metres from the centre of doorways (26%), Table A6.

The main feedback from this cohort of respondents was that no-smoking areas should relate to the entire extent of grounds associated with NHS hospitals. Wider points raised throughout the consultation were also mentioned (e.g. NHS should be exemplar of health promotion, reduce exposure to second-hand smoke, could be easier to enforce). Linked to these points was that consideration could also be given to sign-posting people to smoking shelters away from hospital building entrances.

"..the ban should be enforced at the hospital gates with the exception of a designed smoking zone. This is the only way the NHS has a chance of stopping people congregating at entrances and smoking".
Individual

Another common theme related to challenges around the public knowing where "hospital grounds" start and end and in terms of effective enforcement.

"would present significant challenges for enforcement…..a pedestrian who is walking on the pavement adjacent to a hospital building commits an offence if they so do whilst holding a lit cigarette. Moreover, the transient nature of the offence makes it unlikely that any given smoker could or would be challenged as it would not be reasonably practicable for a local authority to maintain a presence at such locations to so do; this would render such a prohibition unenforceable".
Glasgow City Council

"Members of the public could unknowingly commit an offence while passing through such an area".
NHS Borders

"We have a number of buildings that are adjacent to private properties/gardens and public roads and this legislation would be difficult to enforce. We believe that boundaries should be either 15 metres or where our site boundaries end".
NHS Grampian

"Some hospital sites (e.g. Leverndale Hospital) are surrounded by housing and it is not clear or apparent to many where the grounds begin or end. Likewise, it would not occur to many patients what they specifically were not allowed to smoke on footpaths. Again enforcement was felt to be nearly impossible, particularly if one could avoid the ban by walking say, onto a road or grass verge".
Mental Health Network Greater Glasgow

Wider feedback noted:

• That public footpaths, cycle paths and footways are "public" "land"/ "infrastructure" and some felt that people should be able to smoke there. A related point was that they should only be classed as non-smoking areas if they were enclosed or "connected to the building by means of a covered roof".
• Opposition to any smoking ban - it was viewed as too prohibitive.