Prohibiting smoking outside hospital buildings: consultation

Section 3 – Exceptions

Hospitals

As amended, the 2005 Act states that for the purposes of Part 1 of that Act “hospital” means a health service hospital (as defined in section 108(1) of the National Health Service (Scotland) Act 1978^[5]). So for the proposed regulations a “hospital” means -

(a) any institution for the reception and treatment of persons suffering from illness,

(b) any maternity home, and

(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 includes 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.

We have 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 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.

We are not proposing to exclude psychiatric hospitals from the definition of hospital. In discussion with NHS boards we have not identified any other types of hospital that should be exempted from the requirement to have a no-smoking area.

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?
Please tick one	Yes		No		Don’t Know
If you have any comments on this exception please record those here.

Hospital buildings

The 2005 Act defines a “hospital building” as meaning 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, we propose 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. As with question 4, above, the definition of “hospital” comes from the 1978 Act. Examples of buildings which would be excluded from the definition include buildings used:

a) as a hospice;

b) to deliver support to the hospital such as laundry, catering, storage, heating or administration buildings;

c) for teaching, learning or research; or

d) 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 we propose to regulate to say that buildings are not hospital buildings if they are not:

a) used for the reception and treatment of persons suffering from illness;

b) a maternity home;

c) used for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation;

d) used for dental treatment and maintained in connection with a dental school;

e) a clinic, dispensary or out-patient department maintained in connection with any building falling within paragraphs a) – d); or

f) used to provide a corridor, walkway or other link between buildings used for any of the purposes mentioned in paragraphs a) – e).

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

Question 5	Do you support the proposal that no-smoking areas will only apply to buildings used wholly or partly as a hospital?
Please tick one	Yes		No		Don’t Know
If you have any comments on this exception please record those here.

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 will therefore include 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 we propose to 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.

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.
Please tick one	Yes		No		Don’t Know
If you have any comments on this please record those here.