Smoking and human rights

Our service users die an average of 15-25 years younger than the general population, and disproportionately high prevalence of smoking is the primary cause of these premature deaths. Our duty of care compels us to work to reduce this unacceptable 'mortality gap', and improving smoking cessation rates is a vital step in supporting service users to achieve gains in both quantity and quality of life.

Therefore, under the proposals being considered, the support that people with nicotine dependence receive from us will be equal to the care and treatment given to people with other substance use disorders. This will include ensuring there are smoking cessation advisors embedded in all of our services, that all inpatients have access to nicotine replacement therapies 24hrs a day, and the removal of all designated smoking areas and facilitated smoking arrangements on Trust sites.

Legislation and ethics

The Northern Ireland Human Rights Commission considered the issue of smoking and human rights in 1995 and found that "no treaty or other instrument defines a human right to smoke and the Commission does not accept the position, sometimes advanced by the tobacco lobby, that there is such a right."

Article 1 of the UK Human Rights Act of 1998 states that:

"everyone's right to life shall be protected by law."

The Charter of Fundamental Rights of the European Union, signed in 2000, states that: "every worker has the right to working conditions which respect his or her health,safety and dignity."

Article 8 of the Universal Declaration of Human Rights provides for the right to a private life. This is a referred to as a 'qualified right', meaning it does not override the protection of the health and freedom of others.

Tobacco smoke is a Class A carcinogen, and exposure to second-hand smoke causes direct harm to non-smokers. Therefore, under the legislation the right to work or be treated in a hospital (or community centre) that has not been polluted by a Class A carcinogen outweighs any perceived right to smoke.

Under the Health Act 2006 the vast majority of the British public have legal protection from exposure to second-hand smoke in public places. Failing to afford people with a mental illness the same level of protection from exposure to second-hand smoke, or encouragement to quit smoking as a result of the introduction of smoke-free places is discriminatory against this group.

During a 2008 legal challenge to a total smoke-free policy in Nottinghamshire NHS trust, legal precedence relating to the implementation of fully smoke-free mental health units was established by the High Court:

• Rejecting the notion of an absolute right to smoke wherever one is living
• Rejecting the argument that those responsible for the care of detained people are obliged to make arrangements to enable them to smoke.
• Concluding that in the interests of public health, strict restrictions on smoking and a complete ban in appropriate circumstances are justified.

The Court also noted that none of the various disturbing consequences of a smoke-free policy feared by the claimants, such as an increase in the prescription of sedative drugs, had actually materialised.