The challenge:
We recently advised a Foundation Trust that had received a freedom of information request (FOI) asking for both proof of the authority under which the Trust had brought in the ban, and a copy of the Board Minutes confirming it. As the request had been made through a solicitor, the Trust did not know if the request had been made on behalf of an employee, a patient or a member of the public.

The background:
As to authority for the ban, the Health Act 2006 offers little guidance as it focuses on enclosed premises and does not cover open areas. In this context however, is it perhaps something of a distraction? The Act merely introduced compulsory measures for certain premises together with an enforcement regime. Other forms of smoking bans existed before 2006.

As owners of their land, NHS Trusts and Foundation Trusts are free to deal with it as they see fit, subject to any restrictions from the Department of Health or Monitor respectively. There are no such restrictions which prevent operational management in this regard and a site wide smoking ban should therefore be viewed in the same way as say, a one way system to traffic or parking restrictions.

Human rights:
But smoking is an emotive issue!

The introduction of the ban was not without its challenges and criticisms, viewed by the pro smoking lobbyists as being an imposition too far by the ‘nanny state’. A Trust imposing a ban seeking to extend this prohibition might therefore invite an infringement of liberties challenge.

However, it is unlikely this would be successful. It has been held that smoking is not a human right when the impact of a smoking ban on mental health patients was considered¹.

Enforcement:
Therefore, whilst a Trust, or indeed any landowner, has the power to implement its own smoking bans, it should not forget that outside areas are not automatically covered by the Health Act 2006. Therefore, until hospital grounds are designated smoke free, under Section 4.1 of the Act, the enforcement provisions will not apply. It will be for the Trust itself to ensure compliance with the ban and to consider appropriate penalties.

Conclusion:
Trusts with site-wide smoking bans, or those wanting to implement them, should therefore continue to do so but should ensure they comply as closely as possible with the operational requirements of the Health Act 2006.They should also ensure that decisions relating to the ban are properly documented and authorised in Trust Board Minutes and that there is adequate signage around the grounds notifying visitors of the restrictions.

¹ The Queen on the application of G v Nottinghamshire Healthcare NHS Trust
The Queen on the application of N v Secretary of State for Health
The Queen on the application of B v Nottinghamshire Healthcare NHS Trust
[2008] EWHC 1096 (Admin)