Legal briefing: preparing for the smoking ban

On 1 July, it will become a criminal offence to smoke in enclosed places in England. David Lock explains the wider implications of the ban

A smoking ban is being introduced in all enclosed places in England.from 1 July..This means an end to the noxious weed being inhaled by everyone who works in the NHS.

As usual, the NHS is ahead of the game. The Healthcare Commission required all NHS bodies to have smoke-free policies in place by December 2006, so.most NHS buildings are already smoke-free..

So what will change.on 1 July? On that date, it will become a criminal offence to smoke inside. Until now, trusts could only throw people off the premises for lighting up or, if you happened to have a High Court judge in the next hospital bed (even their lordships need treatment from time to time), you could get an impromptu injunction to restrain someone from polluting the air with tobacco smoke. If the smoker carried on, you could then get the tipstaff (also conveniently in the same hospital for some minor treatment) to arrest the smoker for contempt of court. Never happened, of course, but it is.a nice idea.

But there is a second criminal offence that is worth noting. Section 8(2) of the Health Act 2006 says: 'It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking.' This means.failing to stop the puffers will land the trust before the criminal courts, along with the aforementioned smoker.

It is.a reflection of the relative priorities of the government that the smoker can be fined£100 for lighting up and the trust can be fined£2,500 for failing to stop him or her.

There is also a legal duty to put up signs telling people not to smoke on NHS premises - as if this were not totally obvious. If you cannot smoke in the pub after 1 July, who would presume the right.to smoke in a hospital?

Right to smoke?

There is bound to be a great deal of human rights nonsense spoken over the next few months. There is no 'right to smoke' and, outside very particular circumstances, you can tell anyone who claims this right to take a running jump - or go outside and carry on self-harming by feeding their addiction.

There are, however, two issues worth considering. First, some smoke-free policies extend to the grounds as well as buildings. Trusts are perfectly entitled to set the site rules to include the grounds and it can be seen as a gold standard. But smoking outside is not a criminal offence and to enforce this the trust must rely on the.fact that it controls the land, and so can say who does what on the land. That works in law and in practice for everyone except parents who have teenagers - but that is a different story..

Another difficult area is where the NHS is someone's home. There are potential exemptions for care homes and a potential one-year extension for psychiatric institutions. The legality of the latter is being tested in a test case brought by a Rampton patient that will be heard in early September.

Government policy is not to stop people from smoking in their own homes, but to prevent it in enclosed public spaces. So, you might ask, what.happens if someone lives in a public building and, like Rampton,.they do not want to be there in the first place. As counsel in the case, I cannot comment further other than to say watch this space.

David Lock is a barrister and head of healthcare at law firm Mills & Reeve. For further information contact david.lock@mills-reeve.com,www.mills-reeve.co.uk, 020 7648 9220