From 1 July 2008 smoking became illegal in any enclosed or substantially enclosed part of any mental health establishment. Residential mental health units had been given an extra year to prepare for implementation. Implementing the smoke free legislation in mental health settings was felt to be particularly challenging, given a higher prevalence of smoking amongst people with mental illness; with up to 70% of patients smoking in mental health units. Five years on from the implementation of the ban, where are we now?

It was unsurprising that a legal challenge was initially made to the smoke free legislation for mental health establishments in 2008, G & B v Nottinghamshire healthcare NHS Trust, N v Secretary of State for Health.  Three patients at the Rampton Hospital brought a case arguing that their human rights were violated by the smoking ban as the Rampton was essentially their home and the ban was incompatible with Article 8 of the European Convention on Human Rights (ECHR), which protects the right to private life. At Rampton, unlike some other hospitals, smoking outside could not reasonably be arranged and the ban meant there could be no designated rooms for smoking. The claims were dismissed and the patients appealed the decision to the Court of Appeal, which again dismissed their claim. The Courts ruled that it was legitimate to restrict a person's Article 8 rights for the protection of health. It is therefore unlikely that any similar challenge would be successful in the future.

In some cases, a total ban has been introduced with premises being completely smoke free. St Andrew's Healthcare for example has a medium secure facility that has implemented a full smoking ban. Service users who had moved from wards that previously allowed smoking were offered nicotine replacement and psychological support when moving to the smoke free facility. Those without access to escorted leave within the grounds had to give up smoking completely, while those who did have access were encouraged to give up smoking. They also introduced a health promotion link nurse and a service user representative for healthier living alternatives. The case study of the facility is featured in the NHS Confederation which published a briefing in September 2013 "Smoking and mental health" and it was reported that there were no rise in incidents of aggression, and no formal complaints about the policy.

Some establishments have introduced a partial ban, placing limits on smoking provision for service users. There has also been the introduction of greater support for quitting smoking and recognition that it is helpful for staff to be trained both in mental health and cessation support.

Higher rates of smoking and resulting reduced life expectancy means that change is firmly on the health agenda. If you have not reviewed your smoking policy recently, now is a good time to do so. Some factors to consider are:

  • If you have designated areas for smoking, how are these working? Have there been breaches of the policy – by staff, patients, or visitors? If so, are adequate steps in place to manage this? Have outdoor spaces effectively become "no go" areas for non-smokers?
  • If you have a partial ban, would your organisation benefit from a full ban? Many believe that this is easier to manage and can increase health benefits.
  • Is there any additional training on cessation that staff or patients would benefit from?
  • Is there provision to monitor smoking status of patients and whether they have quit? This can help evaluate the effectiveness of your policy and support for patients and ensure that further help is provided where necessary. This also means that medication can be monitored, given that smoking can affect the way some psychiatric drugs are metabolised and adjustments may be necessary.

Please contact Julia Jones or Stuart Marchant for further information.