Proposal to Prohibit Tobacco Smoking in the Adult Acute Mental Health Inpatient Unit

Ms Katrina Bracher
Executive Director
ACT Health Directorate
GPO Box 825,
CANBERRA CITY ACT 2601

Dear Ms Bracher

Proposal to prohibit tobacco smoking in the Adult Acute Mental Health Inpatient Unit

Page 1 of 7

Thank you for the opportunity to provide the views of the ACT Human Rights Commission regarding a proposed ban on tobacco smoking within the new Adult Acute Mental Health Inpatient Unit at the CanberraHospital. We understand that a working party is considering a proposal for a complete prohibition on smoking both inside the Unit and within the grounds attached to the Unit, with the provision of free nicotine replacement therapy (NRT) to mental health consumers as required.

This submission is informed by human rights considerations and the specific rights protected under the ACT Human Rights Act 2004 (HR Act), as well as the recently launched ACT Charter of Rights for People who Experience Mental Health Issues (Mental Health Charter), which includes the right to be treated in the least restrictive environment appropriate to individual needs and to participate in decisions and choices about care.

Overview

Overall, while the Commission accepts the important public health objectives underpinning the proposal, we have concerns about the harsh impact that a complete ban may have on individual consumers residing in the Acute Unit during periods of mental health crisis.Although similar bans have been found not to constitute a disproportionate breach of consumers’ right to privacy, or right to be free from inhuman and degrading treatment, in the United Kingdom and Canada, the issues have not yet been tested in the Australian Courts.

We are concerned that both research and consumer accounts suggest that a complete smoking ban may have a deterrent effect on consumers seeking help when in crisis, where consumers fear the withdrawal of their cigarettes if admitted to the Acute Unit. The Commission has further concerns that a complete smoking ban may make it more difficult to implement a policy of having unlocked areas of the new Acute Unit to allow consumers (particularly those admitted on a voluntary basis) to have greater freedom of movement, as discussed in the Commission’s 2009 Review of the Psychiatric Services Unit.In our view it is likely that a smoking ban will lead tosome consumers in unlocked areas leaving the grounds of the Unit for extended periods to smoke and thus being unavailable for treatment.

All of these potential consequences of a complete smoking ban need to be given careful consideration by the working party, and all possible alternatives to a complete ban (such as designated outside smoking areas) should be considered. We suggest that the experiences of mental health units in other Australian jurisdictions, particularly Victoria (which has similar human rights legislation), that have banned smoking be closely examined. We further recommend, in accordance with the right of consumers to participate in decision making supported by the Charter, that the working party undertake detailed consultation with mental health consumers likely to be affected by the proposal. In our view, it would be appropriate to seek the views of consumers in both the high and low dependency units over the coming weeks, as well as the views of mental health consumer groups.

Human Rights issues

The proposed ban potentially engages a number of human rights protected under the HR Act including consumers right not to have privacy and home interfered with unlawfully or arbitrarily (s.12); the right to equality before the law (s.8); the right not to be treated or punished in a cruel, inhuman or degrading way (s.10) and the rightof people deprived of liberty to be treated with humanity and withrespect for the inherent dignity of the human person (s.19). The situation of workers and non-smoking consumers exposed to environmental tobacco smoke also engages competing human rights, including the right to life (s.9).

Under s.28 of the HR Act, these rights may be subject only to reasonable limits, set by Territory laws that are demonstrably justified in a free and democratic society’. In ascertaining whether a limitation is reasonable, the factors set out in s.28(2) of the HRAct must be considered:

(a) the nature of the right affected;

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve thepurpose the limitation seeks to achieve.

International human rights case law may be relevant to the interpretation and application of human rights in the ACT under s.31 of the HR Act. The issue of a complete ban on smoking in mental health units has been considered by the Courts in other human rights jurisdictions such as the United Kingdom and Canada. In both jurisdictions the Courts have determined that a ban does not unreasonably restrict human rights such as the right to privacy. In R (on the application of G and others) v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Health,[1] the majority of the House of Lords found that in the context of a secure mental health facility, there could not be the same expectation of privacy as in a private home, and that smoking was not sufficiently connected to the integrity of a person’s identity toqualify as an activity meriting the protection of the right to private life in such a context. In Canada a ban on smoking in a forensic secure psychiatric unit was found not to breach the Canadian Charter, although Pitt J noted that:

“While there is no basis for finding a Charter violation, there is clearly a duty on the respondents to recognize and act on the recognition that extraordinary care is required in assisting those who are detained … while they adjust to a smoke-free environment, even if the recognition involves extending the smoking exemption for a limited period of time, and/or providing, on a voluntary basis, additional aids specifically designed for the mentally ill, within the limitations of the respondents’ budget.”[2]

Nevertheless, the issue has not yet been considered under the HR Act or the Victorian Charter of Human Rights and Responsibilities 2006. We note that a matter is currently before the Victorian Civil and Administrative Tribunal (VCAT) regarding a prohibition on smoking in the Alfred Hospital in Victoria, which may provide greater guidance for the ACT on the scope of the right to privacy.[3] In our view there remains a strong argument that consumers who are involuntarily detained for mental health treatment should have their privacy and autonomy respected to the greatest degree possible, to the extent that this is consistent with their safety and that of others (including staff) within the Unit.

We note that the ACT Health Directorate has also recently adopted the Mental Health Charterwhich recognises the relevant rights of consumers to be treated in the least restrictive environment appropriate to individual needs, and to participate in decisions and choices about care. While not directly enforceable, this Charter is an important statement of the values of the Directorate in the provision of services to consumers.

Accordingly, in our view it is necessary to consider the objectives sought to be achieved by the ban, and whether a complete ban on smoking is a reasonable and proportionate limitation on consumers’ human rights.

Objectives of the Proposal

The Commission accepts that there are a numberof important public health objectives of the proposal to completely ban smoking in the Acute Unit, which we understand may include:

providing a smoke-free workplace for staff and residents to comply with occupational health and safety obligations, consistent with other areas in the CanberraHospital;

creating a healthier culture in the new Unit, which is not focused on smoking, and does not encourage mental health consumers to take up or increase smoking;

improving health outcomes for mental health consumers, by assisting them to cease smoking in the longer term.

The effects of smoking on health and the impact of passive smoking on health have been well documented. Smoking is the single greatest cause of death and disease in Australia, and there is no ‘safe level’ of exposure to environmental tobacco smoke (ETS).[4] The health risks posed by tobacco smoke are likely to be more pronounced in a mental health unit environment in light of the higher proportion of consumerswhosmoke compared to the general population.[5]Australia is a party to the World Health Organisation Framework Convention on Tobacco Control (‘FCTC’), a binding international convention to which 168 countries are a party.[6] The FCTC requires member states to:

“…provid[e] for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places.”[7]

This places a positive obligation on governments to take steps to protect individuals from exposure to ETS, as s.31 of the HR Act enables reference to international law, such as UN instruments.

An environment where staff and consumers are exposed to ETS has the potential to impact on the rights of both staff and consumers. Staff have a right to a safe and healthy work environment under occupational health and safety law, and exposure to ETS may violate this obligation.[8] From a consumer’s perspective, the Unit is arguably a de facto ‘home’, and exposure to ETS may violate their right to privacy under s.12 of the HRAct.[9]

The objective of creating a safe smoke free work environment for staff and consumers is thus of great importance. A ban on smoking in indoor areas at the Acute Unit is likely to be the only way to prevent exposure to harmful ETS. However,the situation may be less clear regarding the effect of ETS in well ventilated designated outdoor smoking areas. In the Commission’s 2009 review of the PSU we noted that designated outdoor smoking areas could be considered in the design of a new facility to prevent smoke wafting inside or contaminating other outside areas.

The objective of changing the culture of the Acute Unit to reduce the focus on smoking and to avoid encouraging consumers to take up the habit or to increase their smoking is also an important one.

One consumer describes the smoking culture in a similar mental health unit as follows:

“Upon early morning rising, well before breakfast had been served, the vast majority of patients were in the designated garden area smoking. After meals there they would be again, smoking. Before queuing for medicine, and as soon as the pills had been washed down, a quick cigarette was on nearly everyone’s agenda. In between sessions of group therapy, the clinic halls resembled those of a primary school at bell time. No running allowed, patients almost race walked, the garden their destination. Cigarettes would be pulled from packs before the outside doors were swung open. One step across the threshold and lighters were already lit. First drags had been sucked down before the door had even closed behind.”[10]

Such a culture may encouragenon-smokers to take up the habit, or occasional smokers to intensify their smoking. A complete ban on smoking is likely to be more effective in changing this entrenched culture than designated outdoor smoking areas. However, other consumer accounts suggest that a ban on cigarettes does not stop consumers from thinking about smoking, but can create a covert tobacco culture which can affect relationships with treating professionals:

“Within a few days I learnt how to smuggle cigarettes on to the ward, and how to trade for them. Ibegan to hide cigarettes everywhere I could think of, and to constantly be on the lookout for staffwho might catch me. Getting hold of cigarettes, and being able to smoke them, was the main focusof my admission. And every time I was searched, or my belongings were searched – looking forcigarettes – I became less trusting of the staff and less honest when discussing my mental healthtreatment…I know that people aretrading money, possessions, and even sex for cigarettes. Some people arestealing, absconding or threatening other patients.”[11]

An account of a Canadian secure mental health facility transitioning to a smoke free environment also notes the creation of a ‘black market’ in tobacco products and reports of surreptitious smoking by patients and staff, although overall the authors consider the transition to be a success.[12]

There may thus be an argument that a complete ban on smoking may not necessarily achieve a positive cultural change regarding smoking, and that there are complexities in terms of compliance that need to be considered in relation to any smoking ban.

The objective of improving consumer health in the long term is also an important objective, as higher smoking rates amongst consumers is linked to higher prevalence of smoking related diseases and shortened life expectancy. However, research suggests that enforced cessation during short periods of admission is unlikely tolead to consumers giving up tobacco in the longer term.[13]It appears that longer term specialised outpatient support, when the consumer perceives the value in cessation, is likely to have greater effects on reducing consumer smoking.[14]

Potential impact on consumers in crisis

Accounts of consumers who have experienced smoking bans in mental health units suggest that the removal of cigarettes during a time of mental health crisis can lead to significant sufferingfor people who are addicted to nicotine. Indigo Daya, the applicant in the case against the AlfredHospital, describes her experience as follows:

“So here I was in a psychward, literally out of my mind, feeling very trapped andvulnerable … and then I was searched, my cigaretteswere confiscated, I was handed a patch and a nicotineinhaler and told I’d have to quit...There were times when the effect of forced quitting wasso severe that I would end up sobbing, shaking, enraged,yelling. At other times the smoking ban became moreevidence to my shattered mind that I was getting thepunishment I deserved, and I would self harm, partly outof desperation and partly to reinforce the punishmentsof the hospital and my mind…A short time after my first admission I becamevery unwell again. Twice, in fact. And in both instances I went to extreme lengths to avoid returningto hospital because of the smoking bans. I knew that being forced to quit again, especially right then,

would just make me feel worse. Unfortunately, that left me with no safety net for my health, andthere were some pretty disastrous outcomes. Suffice to say that I’m glad I’m still here today – I veryeasily might not have been.”[15]

Evidence of psychiatrist Dr Powell, considered in the UK case of R (on the application of G and others) v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Healthnoted thatresearch in the field:

"strongly suggests both that smoking does produce acute benefits to many patients with mental disorder in terms of its enhancement of certain cognitive processes, and also that subjectively they perceive smoking to be more helpful in coping with stress and in enhancing mood than do smokers who do not have mental disorders."

Research from a hospital in Canada which completely banned smoking provides some evidence that such bans can have a deterrent effect for consumers who have greater reluctance to seek help if admission involves nicotine withdrawal. Kurdyak et al found a significant reduction in presentations to the emergency department for patients with psychosis related diagnoses in the seven months after the introduction of the smoke free policy. The authors note that “Given the nature of clientele who frequent apsychiatric emergency department, any reduction in visit frequencycould be associated with adverse outcomes.” The paper concludes:

“When a smoking cessation policy impacts all health care facilitiesin a region, the number of patients with psychotic illnessesseeking mental health crisis support drops. The goal ofsmoking cessation in people with mental illnesses needs to bebalanced by the goal of providing emergency department serviceaccess to patients in crisis, especially those with psychoticdisorders. Given that these are vulnerable populationswith specific clinical needs, concern must be raised over thepotential for these kinds of policies to adversely affect accessto services. Further research is required to explore moredetailed outcomes related to the no smoking policy.”[16]

The potential for a complete ban on smoking to impact on accessibility of treatment or to act as a deterrent for consumers in the ACT needing mental health care is of concern. In our view further research is needed into consumers’ experiences of smoking and the impact that a complete ban may have on their willingness to seek assistance in a time of crisis. It would be appropriate for the Directorate to conduct detailed consultations with consumers regarding their views on the smoking ban.

Impact on policy to open areas of the Acute Unit

A further area of concern of the Commission is whether a smoking ban may make it more difficult for the Directorate to adopt a policy of opening some areas of the Acute Unit to respect the right of voluntary inpatients to liberty and freedom of movement. It appears that a complete ban on smoking, in conjunction with atransition to a more open environment may create an incentive for consumers in open areas to leave the Unit for extended periods to smoke and thus be unavailable for treatment and supervision. The Commission recommended in its 2009 Review of the PSU that ACT Health conduct a thorough risk assessment and human rights compliance assessment in relation to the new facility, specifically to determine whether it is