De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111

De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111 - VSC 2016 case summary — Zoe

[64]

Forensicare - a no smoking zone

Cigarette smoking is a serious addiction. There is little debate any more about the health risks of both active and passive smoking. Policies are being implemented around the globe which seek to reduce and restrict smoking.

Forensicare seeks to improve the wellbeing of its patients and clients and at the same time promote the wellbeing of its staff.

Forensicare has a duty to provide a healthy and safe environment for everyone.

The experiences of Melbourne Health institutions in attempting to implement various smoke free policies has been mixed. Largely failures have been related to the very short term nature of admissions and the openness of their services.

Prisons in New Zealand have successfully implemented smoke free policies. Forensic services in the UK have published their experience with successful smoke free policies. The restrictive forensic environments provide an excellent opportunity to support people over their addiction and on to a smoke free life. There are numerous smoking cessation supports available to meet a variety of needs.

What Forensicare requires to successfully achieve a goal of being a smoke free zone is the commitment from the Council, the Executive and the clinical staff to working towards that goal.

Some steps are already underway. Recently a new policy has been implemented which further restricts the areas in which staff and patients may smoke. Patient consumers and patient advisory group have been informed that we do plan to move towards a smoke free policy.

In order to achieve smoke free status there is considerable preparation required. This includes informing people, accessing smoking cessation supports, making clinical staff aware of the implications (e.g. changes to medication dose), engaging families and carers, dealing with the legal challenges. Conservatively this would take one year to work through.

I believe it is important for the Council to make a clear statement of intent that Forensicare will be smoke free from 1st Jan 2014. This would provide the necessary incentive for the Executive to form a task group to get on with the processes and inform the Council from time to time of progress.

[66]

There is a substantial body of literature on the effects of smoking for people with a mental illness. There is also a growing body of literature on mental health services and prisons going 'smoke free'. Some of this literature is provided to Council electronically with this briefing.

Legal Issues

In Victoria the Tobacco Act 1987 provides for the creation of smoke free environments in recognition of the harmful effects of smoking, particularly passive smoking. The Tobacco Act prohibits smoking in enclosed workplaces, including mental health services, unless an exemption is granted by the Secretary. Forensicare currently has an exemption from this general ban which provides for designated smoking courtyards in the acute units where patients do not have general access to the hospital grounds. The Tobacco Act does not prohibit smoking in hospital grounds.

A number of hospitals in Victoria and other states of Australia have introduced totally smoke free environments. Forensicare is now intending to introduce a totally smoke free environment at Thomas Embling Hospital. This is in line with Forensicare's legal obligation under the Occupational Health and Safety Act 2004, to 'so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health' (see section 21).

Whilst the OHS Act does not provide a clear authority for the protection of patients from the harmful effects of passive smoking, to do so is sensible from a legal and risk management point of view. However, it is not clear whether banning smoking in the hospital grounds is necessary in order to provide the required protection to non-smoking patients and staff.

In addition, there may be legal arguments against prohibiting access to smoking for patients who choose to smoke. Another health service in Victoria was recently subject to a claim under the Equal Opportunity Act from a patient held under an involuntary treatment order who said that the smoke free environment policy operated in a discriminatory manner for mental health patients who were unable to leave locked units to smoke in designated smoking areas outside the hospital grounds. This claim was settled in mediation so it is unclear whether it is likely to have succeeded.

A further point to note is that a significant proportion of our patients come from prison, where smoking is generally allowed.

Moving Forward

There is much work to be done in implementing any ban on smoking within the Hospital. Consultation with consumers and staff and various advocacy groups will be required. There may also be a need for further legal advice on the issue. At this stage management is seeking endorsement from Council of the principle that the Hospital should be a smoke free environment by January 2014. Further updates on the initiative will be provided as it progresses.

Recommendation

That Council provide 'in principle' support that the Thomas Embling Hospital be a smoke-free environment by 1 January 2014.

[139]

This letter is written on behalf of concerned patients at Thomas Embling Hospital about the impending smoking bans coming into force on July 1st 2015. The overall content and individual points raised are a direct reflection of many patients views canvassed from across the hospital.

A key issue around the smoking bans is that it takes away basic human rights of patients. They are not in a prison setting, and are here for treatment, not punishment, thus do not deserve to have this life choice taken away from them.

Many patients see Thomas Embling Hospital as their home, being here for many years, and argue that elsewhere in the general community citizens are not told/forced to quit smoking in their personal place of residence. Even though smoking is banned in a lot of public and government facilities smokers still have the choice to go outside to smoke, many patients here do not have the option to simply walk outside the hospital.

For those who can temporarily leave the hospital and choose to smoke whilst on leave, they are then subjected to involuntary withdrawal every time they are back in this environment. Arguments that say once the first few months of smoking cessation are tackled it becomes easier to handle do not fit with smoker's experience of dealing with this highly addictive habit. In the community it can take numerous attempts to successfully quit and cravings can last decades.

The point was also raised that those patients who do have leave may abscond rather than coming back to such a restrictive/limiting environment, even though the Mental Health Act 2014 outlines in Section 11 that patients should be treated in the least restrictive manner possible. Also those patients, who do progress back to the general community where they can freely smoke, may not report breakthrough symptoms readily to supervising staff for fear of being put back in hospital. This could lead to a more serious episode not being averted by early intervention.

Within the hospital there is also the risk of increased acuity and violence from the stress of forced withdrawal from cigarettes. Nicotine Replacement Therapies have a reputation of giving some people 'night terrors' that can trigger trauma and symptoms of their illness. Quitting abruptly may exacerbate psychological harm for individuals. Patients have a certain vulnerability in this environment and use cigarettes as a positive tool for managing mood and taking 'time-out', which helps to prevent escalation into potential incidents.

Smoking is one of the last luxuries patients have, being forced to quit drugs and alcohol whilst here. There is a very high incidence of past substance abuse amongst the patient population. Smoking helps patients deal with the social isolation experienced at [the Hospital], replacing systems used in the general community to engage in a contributing life. For example, access to sporting clubs for fitness, a regular job to combat boredom and enhance citizenship and identity, and consuming alcohol as an accepted part of social activity and engagement with others.

In fact, the smoke-free policy is not an accepted expectation in the general community, smoking is not illegal. The patients here are a vulnerable group, with restricted rights, who cannot just leave if they are unhappy with the conditions, and as such are being discriminated against as a minority group. Their privacy will be further invaded with the need for more strip searches and searches of property in an effort to control contraband. They have been afforded no choice and no options. If patients are caught smoking or with associated contraband they face potential loss of leaves and privileges. These conditions contraindicate liberties set out in the Equal Opportunity Act 2010 for direct and indirect discrimination and the Victorian Charter of Human Rights and Responsibilities 2006.

This is the opposite of Recovery Principles as outlined in the NSQHS Accreditation Standards and numerous Government Recovery focussed documents. The argument that smoking bans are part of a 'duty of care' is patriarchal and goes against the Recovery direction underpinning the new MHA 2014. It does not allow for self-determination and autonomy, or a patients' right to make what others may consider 'wrong' or 'bad' choices as outlined in section 11 of the MHA 2014: '(d) persons receiving mental health services should be allowed to make decisions about their assessment, treatment and recovery that involve a degree of risk;'. This un-inclusive approach can further reinforce patients feeling of disempowerment, hopelessness, and being distanced and stigmatized in contrast to the general community. Many smokers are aware of the health risks and have even offered to sign a waiver against suing the Government should they incur smoking related illnesses.

In fact, the short-term effects of quitting can actually cause harm such as increased stress levels, flashbacks, vivid dreams, significant weight gain, thought disorders like obsessions and pre-occupation and taking up an alternative addiction, e.g. alcohol and illicit drugs. Longer-term effects can involve depression and the need for more psychiatric medication with its potential negative side effects compounding primary health issues further.

Along Recovery lines we propose an alternative course of action to Smoking Bans. There is a strong view held by both smokers and some non-smokers/reformed smokers that people should be encouraged to quit in their own time and way, not by force. On 'personal choice' terms, not 'Forensicare' terms.

Recent research on smoke free policies has shown that models which use total bans have resulted in increased aggression and use of seclusion. Whereas models using designated smoking areas incorporating smoking reduction and cessation plans have had least impact on Occupational, Health and Safety issues. In research outlined by Indigo Daya in her article '"Smoke-Free" at Inpatient Mental Health Facilities: Risks and Issues from a Consumer Perspective', Indigo notes that specific risks and the overall risk levels for services is high in smoking-ban environments compared to designated smoking area environments (See Risk Matrix page 4).

Possible alternatives at [the Hospital] could include designated areas in the current weatherproof 'smoking rooms' on Units at no extra cost. Banning smoking in all other areas including on Campus, in Units or Unit Courtyards would prevent the problem of second-hand and passive smoking. On Canning Unit they already ration cigarettes by the hour. The introduction of this system more broadly would mean that patients would not need to hold their personal cigarette supply. This would reduce opportunities for stand-over tactics by other patients and illegal bartering in relation to tobacco. A smoking reduction plan potentially leading to an eventual smoking cessation plan may be helpful to those who feel ready to attempt quitting.

Could you please consider the arguments stated above and allow patients their natural rights to continue smoking, in designated areas within Thomas Embling Hospital?

[142]

Thank you for your letter to the CEO and the Chair of the Board, which outlines the concerns of some patients at Thomas Embling Hospital about the impending smoke-free policy that comes into force on 1 July 2015.

As you are no doubt aware, the process of implementing a smoke-free policy is challenging and involves the balancing of a number of competing rights and interests. Forensicare, through the Breathe Easy Project, is committed to a comprehensive consultation and implementation process that carefully considers the impact of the policy on all those to be affected. I have passed your letter the Breathe Easy Steering Committee so that the points you raise can be considered when implementing the policy.

In introducing the policy, Forensicare recognises that smoking is a serious addiction and that quitting smoking can be very challenging, particularly in a long term residential facility such as Thomas Embling Hospital. However, Forensicare recognises its responsibility for the physical wellbeing, as well as the mental health of its consumers, and is committed to addressing the significant life expectancy gap between mental health consumers and the general population. The serious, negative effects of smoking and cigarette smoke on health are well established and the rates of smoking by mental health consumers is a significant factor in their poor health outcomes.

In deciding to make Forensicare a smoke-free environment, Forensicare appreciates the potential impact of quitting smoking on patients' mental and physical health in both the short and long-term. These impacts have been taken into consideration when developing the policy and are reflected in the measures that have been put in place to support patients to quit smoking. Forensicare recognises that nicotine-dependent patients will need to be provided with significant support, both in the months leading up to the implementation of the policy and once the policy comes into effect.

I note your comments regarding the benefits of implementing a partial rather than total smoking ban. In coming to the decision to implement a total ban, the Breathe Easy Steering Committee considered the viability of a partial ban but decided that it would not be appropriate or workable. There is strong evidence that partial smoke-free policies are less successful than total smoke-free policies and create additional problems, the most significant being their limited impact on the culture of smoking, and the potential for conflict between patients, and between staff and patients, that could result from inconsistent decisions about access to the smoking area. There is also strong evidence that there is no safe level of second-hand smoke which makes a partial ban difficult to support.

Thank you once again for your letter and for your support of the patients on this issue.

[150]

There are a number of rights under the Victorian Charter of Human Rights which could be argued to be engaged by the smoke-free policy. Additionally, although unsuccessful in the New Zealand case, there may be scope to argue that there are less restrictive means reasonably available to achieve the purposes of encouraging smoking cessation and protecting patients, staff and passers-by from the effects of smoke inhalation. One such example may be the imposition of a partial ban, with allocated outdoor smoking areas within the grounds of Thomas Embling Hospital.

However, any challenge on these grounds would need to overcome the proportionality test in section 7(2) of the Charter which allows rights to be subject to reasonable limitations. Just because a human right is engaged by a decision or action does not mean that the decision or action is incompatible with the Charter. Rather, a decision is still compatible with the Charter as long as it can be demonstrated that the limitation on the right is reasonable. In relation to a decision to introduce a smoke-free policy, it will be difficult to overcome the proportionality test, given the strong evidence on the harm caused by smoking (including evidence that there is no safe level of secondhand smoke), particularly amongst psychiatric patients, and the strong move towards smoke-free environments expressed in Government policy. There is also strong evidence that partial smoke-free policies are less successful than total smoke-free policies and create additional problems, the most significant being their 'limited impact on the staff and patient culture of smoking', as well as 'equity concerns about access to smoking' stemming from inconsistency of policy application leading to staff conflict with other staff and patients, and patient with other patients.

Regardless of whether or not it could be successfully argued that a particular right was engaged by the smoke-free policy and that the limitation on the right was unreasonable, any action under the Charter would also involve an examination of the consultation and implementation process undertaken by Forensicare. In particular, so as not to be found in breach of its obligations under the Charter, Forensicare would need to demonstrate that it has met its obligation to give proper consideration to relevant rights at every stage of the decision-making process. This would require evidence that Forensicare has considered the various rights that may be impacted by the policy, whether or not the policy is limiting a right in the Charter, and whether the limitation is lawful, necessary, and proportionate in the circumstances.

[215]

As with any ordinary owner of a site that members of the public visit to obtain services such as a restaurant or a hotel, the WDHB has the right to impose conditions on those who enter its property so long as those restrictions are consistent with its objectives and functions. It may regulate the conduct of those who come on its site, insofar as those restrictions do not impose upon positive rights.

Dr Patton, the WDHB psychiatrist and clinical director of mental health and addiction services, stated in his evidence that there have to be rules associated with getting care. In the hospital setting, it is not acceptable for someone to practice sexual promiscuity, or use alcohol or other substances or medications for their gratification. There is a clear risk posed by such activities for patients, either to themselves or to other people, even if those persons feel distress and that their autonomy is being restricted by not allowing that behaviour.

Smoking is a recognised and preventable health hazard for New Zealanders. This is rightly not contested by the applicants. The containment and reduction of that hazard in my view falls entirely within the purposes of DHBs to 'improve, promote and protect the health of New Zealanders'. If a DHB bans smoking on its property as a matter of considered policy, it is taking steps to promote the cessation of individual New Zealanders smoking, and thereby protect their health and improve it, and protect others from tobacco smoke. The elimination of passive smoking promotes the same end.

Given that smoking is a health hazard and that DHBs have a duty to promote policies to prevent or restrict health hazards, it is entirely within the powers vested in DHBs for them to have policies to stop smoking. Of course the power is not unlimited. The Act gives a DHB no power to dictate to New Zealanders how they should behave in their own homes or in places over which DHBs have no control even if they are DHB patients. It is to be noted that staff, patients and visitors are not prohibited by the Smoke-free Policy from smoking per se. They must leave the site if they wish to smoke.[15]

At a glance

Court

Decision date

Before

Source

Judgment (591 paragraphs)

Parties

Legislation Cited (24)

Cases Cited (15)