Smoking: CQC lays down the law. Mat Kinton National MHA Policy Advisor, Care Quality Commission

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1 Smoking: CQC lays down the law Mat Kinton National MHA Policy Advisor, Care Quality Commission

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4 Code of Practice Principle 1 Least restrictive option and maximising independence Wherever possible a patient s independence should be encouraged and supported with a focus on promoting recovery wherever possible.

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6 Recovery is about building a meaningful and satisfying life, as defined by the person themselves, whether or not there are ongoing or recurring symptoms or problems. discovering or rediscovering a sense of personal identity, separate from illness or disability. being able to take on meaningful and satisfying social roles within local communities, rather than in segregated services. self-management, encouraged and facilitated by services.

7 Blanket or global restrictions 1 Restrictions that apply to all patients in a particular setting (blanket or global restrictions) should be avoided. There may be settings where there will be restrictions on all patients that are necessary for their safety or for that of others. Any such restrictions should have a clear justification for the particular hospital, group or ward to which they apply. Blanket restrictions should never be for the convenience of the provider. Any such restrictions, should be agreed by hospital managers, be documented with the reasons for such restrictions clearly described and subject to governance procedures that exist in the relevant organisation. para 1.6

8 Blanket restrictions 2 the term blanket restrictions refers to rules or policies that restrict a patient s liberty and other rights, which are routinely applied to all patients, or to classes of patients, or within a service, without individual risk assessments to justify their application. Blanket restrictions should be avoided unless they can be justified as necessary and proportionate responses to risks identified for particular individuals. The impact of a blanket restriction on each patient should be considered and documented in the patient s records (para 8.5)

9 Article 8 of the European Convention on Human Rights (ECHR) requires public authorities to respect a person s right to a private life. Article 8 has particular importance for people detained under the Act. Privacy, safety and dignity are important constituents of a therapeutic environment. Hospital staff should make conscious efforts to respect the privacy and dignity of patients as far as possible, while maintaining safety Para 8. 4

10 Preventing a person from smoking did not generally involve such adverse effect upon the person s physical or moral integrity as would amount to an interference with the right to respect for private or home life within the meaning of art 8 of the Convention. There was not an absolute right, subject to art 8(2) to smoke wherever one was living. The references to the ambit or scope of art 8 did not introduce, via art 14, an application of art 8. If, contrary to that, the claimants art 8 rights were engaged, health considerations, security considerations and the procedure adopted for scrutinising the regulations supported the conclusion that the measures taken were proportionate R (G) v Nottinghamshire Healthcare NHS Trust (2008) EWHC 1096 (Admin)

11 Difficult as it was to judge the importance of smoking to the integrity of a person s identity, it was not sufficiently close to qualify as an activity meriting the protection of art 8. Art 8 did not protect a right to smoke at the hospital. The prohibition did not, in such an institution, have a sufficiently adverse effect on a patient s physical or metal integrity. If art 8(1) standing alone was not engaged, the right to smoke could not come within the ambit or scope of art 8 for the purposes of art 14. If art 8 had been engaged, the trust and the Secretary of State had successfully justified the ban within art 8(2). R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust (2009) EWCA Civ 795 )

12 I quite accept the point made by the majority that, if Article 8 is engaged by a ban on smoking in the home or the institutional equivalent to the home, it could also be engaged if government were to prohibit the playing of chess or bridge or listening to music, and so on. But I do not regard that as an obstacle to regarding Article 8 as being engaged indeed, quite the opposite. One would hope that, were the executive to seek to interfere with such activities when conducted in private, it would be required to justify the interference under Article 8(2). Lord Justice Keene (dissenting opinion) R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust (2009) EWCA Civ 795

13 That protection is all the more appropriate where the activity in question is taking place in the person's home or in some other institution where he or she resides for a substantial amount of time. That appears to have been the government's own view when it introduced the clause which is now section 3 of the Health Act 2006 nothing put before this court demonstrates that Parliament ever appreciated that in reality the consequence of Regulation 10(3), the time-limit on exemption for mental health units, was likely to be a complete or virtually complete ban on smoking for those detained in secure mental hospitals. Lord Justice Keene (dissenting opinion) R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust (2009) EWCA Civ 795

14 MHAC Thirteenth Biennial Report It is important to remember that modern mental health care aims to support patients towards restitution of their autonomy, and that rules that are seen by patients as petty and unrelated to therapeutic requirements can have an opposite, infantilising effect. Many detained patients resent smoking restrictions, especially where these have the practical effect of depriving them of the opportunity to smoke at all. It is understandable that such patients should resent this as unwarranted paternalism, especially as no other group of adults in our society is so treated. As such, house rules on wards should be reviewed to ensure that they are not unnecessarily restrictive and institutionalising

15 Defensive and therefore coercive practice is not, in our view, an inevitable approach towards patients who are detained under the Act we are encouraged that the prevailing service ethos emphasises more consensual approaches to care. Indeed, we hope that this will be built upon and that future revisions of the Code of Practice will reflect work being undertaken to study and promote low confrontation nursing practice as a foundation for safety*. Values such as respect, choice, patient involvement and autonomy should be seen as integral to all aspects of psychiatric care, rather than being only a counterbalance to its more coercive aspects. MHAC Thirteenth Biennial Report * See, for example, the work of City University Research Team as articulated by Professor Len Bowers Skellern Memorial Lecture 2008, Time present, time past and time future: reflections on psychiatric nursing research.

16 MHAC Thirteenth Biennial Report We remain concerned at those Trusts who, having declared themselves smoke-free (so that smoking is permitted neither in enclosed nor open spaces on the Trust estate), are effectively making leave under s.17 the condition for detained patients to smoke, thus in practice depriving some such patients of any opportunity to do so because of their detained status. We find such a consequence of detention under the Act to be both inappropriate and discriminatory in its effect.

17 MHAC Thirteenth Biennial Report The implementation of the regulations has increased the potential for cigarettes, or access to them, to be used as currency in wholly inappropriate ways. For example, a patient in the east Midlands complained to us in October 2008 that her access to smoking is used punitively. As a part of her risk management plan, she was only allowed a smoking break where she had been settled for the previous four hours. As a consequence she was missing several smoking breaks in the day: we asked that the hospital reconsider its management of the patient, and, where it was unavoidable to prevent the patient from taking a smoking break, to have some form of nicotine replacement available to her.

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19 In the USA hospitalised patients have generally been required to abstain from smoking since a national policy banning smoking in all hospitals, including psychiatric units, was introduced in A number of psychiatric units in the USA do, however, continue to provide some psychiatric patients with smoking passes. It seems likely, from what we have observed in the implementation of smoke-free policies in this country, that a similar pattern of special allowances for certain groups of patients is emerging There is a danger that the issue of passes may become something of a reinforcing measure or reward for good behaviour, whether explicitly or by implication following riskassessment procedures.* MHAC Eleventh Biennial Report * Prochaska J, Gill O, Hall S Treatment of tobacco use in an inpatient psychiatric setting Psychiatric Services Nov 2004 Vol 55 No

20 MHAC Thirteenth Biennial Report There are a number of issues about smoking on the ward. The ward takes people out on escorted leave for smoking. Some patients abscond and then the police have to bring them back and police are now complaining about AWOL patients. The ward is monitoring serious or untoward incidents and has evidence that there has been an increase since the ban and believe that this is related. There is a rise in patients smoking illicitly with increased fire risk patients take the batteries out of the smoke alarms in the toilets. It imposes additional strains on staffing when staff are engaged in taking patients out for smoking breaks and although such times may have therapeutic value it means staff are not necessarily engaged in meaningful activity with patients. Staff feel that if there were a change of policy so that patients could smoke in the secure gardens, then this would address some of these issues North-west England, October 2008

21 MHAC Thirteenth Biennial Report There are services whose culture remains rooted in less forward-looking models of care. In part this can be a distortion of the culture of risk-assessment, where the risks to be assessed are all seen in a negative light, as threats to the stasis of the ward s smooth operation or of rather all-encompassing notions of security. Such wards which can be found in acute mental health services as well as medium and low secure hospitals may be holding back patients recovery. In autumn 2008 we visited a hospital in eastern England:

22 During interview most patients expressed some measure of dissatisfaction with what might be termed the culture on the ward, which ranged from mild irritation but acceptance to feelings of abuse. In particular, patients felt that: i) They are forced to go to sessions and that privileges are withdrawn and/or punishments are meted out if they do not attend, e.g. not being allowed a takeaway; not being allowed out for a walk; being locked in the wings. ii) They are unnecessarily denied access to their bedrooms, which means that they have to sit in the communal areas when they would like some privacy or quiet time. iii) That visitors are restricted if patients don t behave. iv) The cigarette regime is overly prescriptive and restrictive. v) Food is limited because of diets e.g. a third piece of bread being removed from a patient. vi) Their views are not always respected; that there are too many rules ; one patient stated that they treat us like children.

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