Tim Dare: Smoking bans and human rights

Patients who would have voluntarily sought treatment are dissuaded from doing so by smoking bans. Photo / Getty Images

Patsi Davies and Sharon Lawn complain about the normalisation of tobacco use, particularly with respect to the mentally ill, and defend smoking bans in psychiatric hospitals, arguing that who oppose such bans fail to recognise mental health workers' responsibilities to support those most in need of care, and are mistaken about the scope of human rights.

But the key responsibility of mental health professions toward those in their care is surely to provide effective care, and that concern itself supports scepticism about the ban.

A survey of the effects of a smoking ban at Britain's most secure psychiatric hospital, Rampton, though for the most part endorsing the ban, could not ignore disturbing trends which appear to raise doubts about the therapeutic merits of the ban. A comparison of violent incidents and the need to remove patients to 'seclusion' before and after the ban showed a dramatic increase among pre-ban smokers. Self harm and aggressive incidents increased by 25% and resort to seclusion doubled. (These rates would likely be worse at other hospitals: Rampton is unusually well resourced). Unsurprisingly, British Mental Health Foundation surveys have shown significant staff concern that smoking bans are a drain on resources (BBC Online 2009 (2009-06-21)). There is every reason to think the ban will require extra resources in New Zealand too, resources which could go into patient care.

That is especially troubling in the case of patients subject to compulsory treatment orders under the Mental Health Act, who have been placed in care following a hearing in which a mental health expert has satisfied a judge that the patient's health needs are sufficiently significant and pressing to warrant compulsory treatment. Under those circumstances, there is extra reason to ensure that the 'treatment opportunity' used to justify hospitalisation is not compromised and that the scope of treatment is not extended beyond that necessary to address the triggering health concerns.

There is also evidence that patients who would have voluntarily sought treatment are dissuaded from doing so by smoking bans. Such patients either miss out on treatment they need, or, as shown by a 2010 Canadian study, must be subjected to less desirable compulsory treatment proceedings.

The smoking ban is also likely to raise therapeutic issues directly, rather than by compromising treatment delivery. Davies and Lawn simply assert that mental health improves when people quit, but the evidence for this claim is unclear, and it is probably speculative. The opposite view is entirely plausible.

There is good evidence that some mental illnesses are associated with compulsion and disempowerment, of the sort that the ban is likely to generate in spades, that quitting smoking is stressful, and that depression is associated with a failure to quit smoking. All of that might suggest that compulsory smoking bans would be bad, rather than good, for mental health.

Davies and Lawn portray opponents of the ban as holding mistaken views about human rights. Why, they ask, would we imagine that there is a right to smoke, or that smoking would be included on the list of things we allow to committed patients. But the argument above appeals not to controversial human rights, but to the fundamental professional obligations of mental health workers to provide effective treatment. Why would we leave smoking on the list of allowed activities? Because prohibiting it makes it harder to meet the health needs of the patients, health needs sometimes used to justify compulsory treatment at the outset.

Still, the smoking ban does raise an important "rights issue". The right in question is not an obscure human right: it is a right we all have by virtue of living in a community which, thus far, has not outlawed smoking. Mental health patients should be deprived of only those rights necessary to provide the treatment they need. It is improper to use the opportunity provided by their committal to subject them to improvement programmes not warranted by the particular health needs which justifies their compulsory treatment.

None of this suggests that psychiatric patients, or anyone else, should be able to smoke whenever and wherever they wish. Obvious limitations on smoking are justified in psychiatric hospitals as they are elsewhere, and Davies and Lawn's points about the normalisation of smoking are well made. But psychiatric patients are an extremely vulnerable group, at least some of who have immediate and pressing health needs, and those health needs must be our primary concern. That concern does not appear to warrant a complete smoking ban in psychiatric hospitals.

* Associated Professor Tim Dare is head of Auckland University's philosophy department