When it comes to health and social policy, governments have the difficult task of balancing the desires and rights of individuals with the desires and rights of society as a whole. This is particularly evident in the recent smoking legislation in the Scotland. Current literature and opinion has much focused on the effect of smoking bans on the hospitality industry, and the cost to society of tobacco-related illnesses. This literature review examines the social policy considerations of the recent ban on smoking proposed by the Scottish Executive and currently under consideration. This review first considers the smoking ban bill and an overview of smoking restriction issues. It then deals with one smoker in particular, examining the effect of the proposed legislation on the complex care issues of a middle-aged cancer patient, and the balance between her right to choose her actions, even if self-destructive, and the rights of others in the hospital where she resides.

Smoking is undeniably destructive to the smoker, and the Scottish government is considering action to restrict its use. Among other things, the Scottish Smoking, Health and Social Care Bill will prohibit smoking in wholly enclosed public places (Scottish Parliament 12-2004). It faces final vote in 2005, with implementation, if it passes, scheduled for 2006. Objectives listed in the bill include preventing people, including children, from being exposed to the effects of passive smoking in certain public areas and safeguarding the health of the people of Scotland from the effects of tobacco smoke (Scottish Parliament 2-2005). There is also hope for changing public attitudes towards smoking, preventing Scots from beginning to smoke, and assisting those smokers who want to quit in breaking the habit Scottish Parliament 2-2005). Similar legislation has recently been implemented in Ireland, Norway, and parts of the US with great success (BBC 2004). According to Irish Medical Organisation president James Reilly, in the almost one year Ireland has banned smoking in public, cigarette sales have dropped sixteen percent, demonstrating that more Irish are quitting or reducing smoking (Salvage 2005, 36).

The need to reduce the destruction caused by smoking, therefore, is not limited to Scotland. Countries around the world have begun to address the tobacco situation, with over forty ratifying the WHO’s Framework Convention on Tobacco Control (WHO 2004). The FCTC just went into effect in February 2005, establishes packaging and labelling guidelines, addresses tobacco advertising, provides for regulation to prevent second hand smoke, and tightens efforts on tobacco smuggling (WHO 2004, WHO 2003).

The Scottish legislation replaces the less than effective Scottish Voluntary Charter on Smoking in Public Places. Implemented in May 2000, as of 2005 only 61% of hospitality establishments had some type of non-smoking provision, demonstrating the Charter’s inadequacies (Anon 2005). Bill O’Neil, Scottish Secretary of the British Medical Association, supports the bill, contending that each year we continue to rely on these half-hearted measures, Scots continue to suffer from passive smoke-related illnesses and significant numbers die (BBC 2004).

Smoking is a profoundly destructive health and social issue. The World Health Organisation (2005) lists tobacco as the second major cause of death in the world, affecting one in ten adults worldwide. Half the people who smoke today, that is about 650 million people, will eventually be killed by tobacco (WHO 2005). The government contends, smoking is the main avoidable cause of early death in Britain, killing more than 120,000 people a year, even publishing a White Paper titled Smoking Kills (Gardiner 2004, DOH 1998). Scotland’s Chief Medical Officer, Mac Armstrong states nicotine is twice as addictive as cocaine and that it takes sixteen years off the average smoker’s life (Johnson 2004, 8).

Tobacco is also destructive to non-smokers. Smoking and exposure to passive smoke are the fourth most common risk factor for disease of any kind worldwide (WHO 2004). This risk extends to those who choose to smoke, and those who are exposed to others’ cigarettes, regardless of choice. The Scientific Committee on Tobacco and Health (2005) concludes that exposure to second hand smoke, also called environmental tobacco smoke (ETS), is a cause of lung cancer, heart disease, and asthma, and represents a substantial public health hazard. Jim Devine of Unison stated to continue to allow people to work in smoky environments is the 21^st century equivalent of sending children up chimneys (BBC 2004). Studies find children regularly exposed to second hand cigarette smoke are more likely to develop asthma (Johnson 2004, 8). Mac Armstrong offers that due to passive smoking, between 1000 and 2000 lives are lost each year in Scotland (Johnson 2004, 8). Some smoking opponents question why it is legal at all, given its social cost and overall destructive impact on human life.

Proponents of smoking argue that adequate ventilation would address much of the second hand smoke risk. However, workplaces with designated smoking areas have been shown to still expose smoke to workers (Leourardy and Kleiner 2000, 68). It also raises the question of who should pay for such ventilation. Tobacco already has staggering economic costs to society, typically claiming the lives of people at the ages when they are most productive and exponentially increasing health care costs (WHO 2005). The average smoker takes 25% more sick days than the average non-smoker (Johnson 2004, 8). These costs are passed on to all members of society, whether they choose to smoke or not, just like second hand smoke.

Other typical arguments against smoking bans are economic. Tobacco companies and members of the Scottish Licensed Trade Association have argued that a full ban is unnecessary and not supported by the public (BBC 2004). Opponents of the smoking ban contend it will ruin business, cause unemployment, and take away people’s right to enjoy a cigarette with a drink in public (Johnson 2004, 8). Tobacco Manufacturers’ Association executive Tim Lord held that a study commissioned by the TMA showed 77% of Scots were opposed to a total smoking ban, particularly disfavouring the ban in clubs, pubs, and bars (BBC 2004). These results were not supported by independent studies, however. A policy memorandum produced for the Scottish Parliament found 70% of Scots in favour of smoking restrictions, with 59% of restaurant owners not expecting any negative impact from the legislation (Scottish Parliament 2-2004). More importantly, any economic impact of smoking restriction must be considered in light of the tremendous cost of smoking to society.

Not all opponents of smoking bans cite economic reasons. Salvage (2005, 36) contends, human rights and freedom of choice are two reasons put forward for [smoking] bans not going ahead. For example, opponents of bans cite the uproar of violation of human rights caused by the recent smoking ban in Liverpool. Health Minister Melanie Johnson stated the bill was incompatible with the Human Rights Act, because it extended smoking bans to private homes and prisons, required smokers to prove their innocence, effectively reversing the burden of proof, and extended the power of searches (Merrick 2005). MPs and peers ruled that it breached human rights laws, while a cross-party human rights committee found the smoking ban bill incompatible with the right to a private life, and possibly the right to a fair trail and the protection of property (Merrick 2005). These impositions on human rights, however, seem based on the bill’s reach beyond public places, and the manner with which that reach is executed. It is unlikely that the legislation currently under consideration in Scotland will have similar flaws.

Questions do arise of the National Health Service’s ability to enforce such legislation. Under the current bill, smoking policies would be enforced by environmental health officers, hired by local councils (Scottish Parliament 12-2004). It is questionable whether they will have the same effect as would police officers, particularly if trying to enforce no-smoking legislation in pubs and bars. As the patient considered here is confined to a hospital, enforcement is not an issue.

Of greater concern regarding the National Health Service is whether it will be able to provide the necessary support for smokers who want to quit. Approximately one-third of smokers try to quit each year, but only three percent succeed (Lewis 2005). Kevin Lewis (2005), Clinical Director of Smoking Cessation of Shropshire, Telford, and Shrewsbury, believes, however, there is great potential for smoking cessation in primary care. If smoking bans are accomplish their objectives of reducing the number of smokers and amount they smoke, adequate resources must be available. The greatest success occurs when a motivated individual is provided with a combination of personal support and pharmacotherapy (nicotine replacement or bupropion), under the care of a trained medical professional, typically a nurse (Lewis 2005). As the government progresses with smoking legislation, preparation and funding for the NHS are imperative to the ultimate success of smoking restrictions.

To provide some background on the specific case considered in this review, the female patient in reference is forty-three years of age. She began smoking at the age of fifteen, and smoked regularly throughout her life. This is not surprising, as 80% of smokers take up tobacco as children and teenagers (Johnson 2004, 8). The patient was diagnosed with lung cancer at the age of forty, which has progressed with some rapidity; her cancer is now inoperable, untreatable, and terminal. She has recently suffered loss of mobility, in addition to general physical degeneration. Due to these complications, the patient now requires a wheelchair to travel even short distances, including going outside the hospital. She is unable to navigate the wheelchair to the common area outside the facility without assistance. The patient, however, continues to smoke, and the recent ban will make her unable to smoke in her room or a designated indoor area of the hospital. In addition, hospital staff is not allowed to assist her in going outside for smoking purposes, per hospital policy. She must therefore wait for visitors to take her out.

There are several factors of prominence in this particular case study. First, while the government has some (albeit debated) responsibly to protect its citizens from themselves, there are no grounds for the need to guard this woman from the effects of smoking (Lambert and Dibsdall 2002). She has irrevocably made the decision to smoke, and bears the consequences. It is unlikely that quitting smoking now will have a pronounced difference on the time she has remaining or on her prognosis. The government therefore has no right for intervention to protect her from the harms of tobacco. The debate then emerges between her human rights to decide her own behaviour and receive adequate care, her responsibility to society, the rights of hospital staff, patients, and visitors regarding second-hand smoke, and the mandate of the hospital to act in the best interest of the patients’ health and well-being.

Advanced societies recognise the right of every human being to make choices regarding his or her behaviour and life, to the point these choices negatively impact others (Perry 1985, 568). The patient, as a part of a larger society, has a responsibility to the members of her community. She is affected by legislation that could save others, and her government does have a responsibility to encourage its citizens to make wise decisions. Smoking is certainly not a wise decision, as even tobacco companies and smoking ban opponents acknowledge its addictive nature and potential for impaired health (Anon 2005; Black, McKie and Allen 2003, 69). The patient undoubtedly recognises this, as she is dying due greatly to her choice to smoke. Certain laws are passed not because they are required for everyone, but because they are needed by most (Perry 1985, 574). For example, many people would drive at excessive speeds from time to time were it not for speed limits. While there are a few that could probably do so without accident, most need speed guidelines to drive safely.

The major difference with smoking is the effect of tobacco smoke on those in the general area. Second-hand smoke, as discussed previously, has been shown to be almost as deadly as actually smoking, and it is often beyond the control of the non-smoker to limit smoking in his or her vicinity. Those commonly cited in this argument are wait staff in clubs and bars, but the same would apply to hospital staff required to clean a designated smoking area or move patients in and out of it (Aung et al 2001, 283; Cuthbert and Nickson 1999, 33). These workers are then faced with either exposing themselves to a potential carcinogen or giving up their jobs (Aung et al 2001, 280). As the patient’s rights extend only to the point they impact others, the government is therefore within its bounds to restrict her smoking in enclosed areas of the hospital.

The question then presents itself, does the patient have the right to continue her destructive behaviour, and what is the hospital’s mandate to prevent her injurious choices? J. David Velleman (1999), in writing about his own bout with cancer, discusses the rights of smokers in society. Instead of focusing on second hand smoke as the effect of smoking on non-smokers, he considers the relationship between the individual and society. He sees himself as my sons’ father, my wife’s husband, my parents’ son, my brothers’ brother (Velleman 1999, 606). However, he comes to the conclusion that a person has a right to make his own life shorter in order to make it better, if he so chooses and however he defines better. Social organisations, like governments or hospitals, only have the right to intervene when the individual is incapable of rational decision (Velleman 1999, 613).

While the patient therefore has the right to smoke, she does not have the right to expect assistance from the hospital. A hospital, as a medical facility, has a corporate responsibility to its patients to promote their healthy living (BBC 2005). Hospitals would not be expected to provide candy machines for uncontrolled diabetics or allow suicidal patients to keep sharp objects. The hospital has a responsibility to promote health (BBC 2005). While this patient may not be more harmed by continuing to smoke, providing assistance or a smoking area for her would require the hospital to do the same for all its patients, thereby assisting many in smoking which would damage their health. The visible issue is her mobility; if she were able to go outside unassisted, her smoking choice would not be limited. It is the combination of her damaging desire to smoke and her degenerative condition that create the quandary.

The most feasible solution is to ask the patient to provide her own assistance to and from the outdoor smoking area. Since she is choosing destructive behaviour that the hospital cannot support, she must find a way to accomplish such behaviour. The government and the hospital in the above instance have the right to impose smoking restrictions on the patient for the good of society as a whole. Both organisations have a mandate to protect those in their community from risk to health, and smoking is most certainly a risk to health. Neither, however, has the right to prevent her from smoking. Therein lies the balance. In her situation, she must find or arrange for someone to help her in her choice to smoke. We as members of society can choose to pursue self-destructive behaviours, but society has no obligation to support us in their pursuit.

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