Abstract
Method
This paper reviews the legal concerns that may apply to psychiatric inpatient settings in Australia, given current clinical and administrative practices involving smoking. These practices were researched and articulated in a series of studies of smoking within public mental health settings in metropolitan South Australia between 1998 and 2001 [1]. The first and second study involved in-depth interviews with patients who were smokers [2], patients who had successfully quit smoking, and multidisciplinary staff of community and inpatient public mental health services. Data were thematically analysed using the Grounded Theory method [3]. This involved ‘constant comparative analysis’ of interview data by means of a process of coding, comparison and clustering, labelling and categorizing, further data collection and coding, recoding where indicated and continual testing of hypotheses against the data as they arose. In this way a framework giving order to the relationship between categories led to the development of an overarching theory, with categories perceived as ‘saturated’ when no new datum emerged to challenge or alter the core category [4], [5] The third study involved an extensive 6-month participant observation of inpatient mental health settings (acute and extended care, open and locked status) and community mental health hostels to validate, triangulate and better understand the interview results. Bronfenbrenner's Ecosystem Model [6] was used to understand the complexity of the interactions shown by the data obtained from the triangulation process. This was a highly useful model in helping to explain and understand the systemically reinforced culture of smoking that was observed to dominate interactions within the mental health settings. It involved articulation of interactions between participants, from an individual to a wider societal level. Similar concerns were observed and confirmed to exist in other Australian psychiatric settings by means of a brief replication study at an interstate psychiatric setting to test generalizability of the South Australian findings [7]. The current review was informed by the results of these studies and by consultation with the South Australia's Public Advocate and the Legal Services Commission of South Australia, whose representative viewed the research results.
Results
The studies that inform this review found that systematic reinforcement of smoking existed by means of a series of entrenched institutional and clinical practices, beliefs and attitudes held by patients and particularly by staff. Therewas overwhelming knowledge of smoking problems with little or no acknowledgement of responsibility by staff for addressing them within the setting. Staff at all levels and all disciplines, from clinical to administrative staff, spoke of their full awareness of the use of cigarettes for trade, standover, exchange for other goods, other drugs and sexual favours among patients. Pressure to become smokers, in the absence of other meaningful activity, was clearly shown with several patients and staff recounting their first-hand knowledge of being initiated into smoking, or knowing of others for which this occurred, as a consequence of being in the hospital setting. Many nursing staff said that they smoked to cope with the stress of their work environment, to socialize with other staff and to act as temporal points of reference such as short breaks from their duties with patients. Many staff said that they condoned patients' smoking, because they saw patients as needing to smoke to help manage their mental illness symptoms. Staff also said they condoned smoking to avoid assault by agitated patients, because they saw quitting as a lesser priority while patients were acutely unwell, and because they perceived cigarettes to be one of the few pleasures for this otherwise highly stigmatized group who many believed were unable to quit. Several nursing staff recounted the historical context for tobacco rationing within the hospital setting. They said that they were directed by management to roll, dispense and light cigarettes for patients where the patients were unable or unsafe to do so themselves and that this was how they started smoking. This mirrored the current practices that were reported and observed during the study period, with nurses dispensing cigarettes routinely in the locked ward and some extended care wards, being responsible for storing cigarettes and lighters and handing them to patients each hour at the nurses' station door in production line fashion. In the open wards, staff said that the storage and management of some patients' cigarettes was a clinical judgement based on concern for the patients' fire risk, level of vulnerability to standover by other patients, level of impaired thinking because of mania or other symptoms and generally to protect patients' funds. Several nurses who had worked in the settings for more than 10 years, said that the promise of a cigarette was how they got patients to do as they asked, that this was common practice as part of their clinical role in the daily care of patients. In the locked settings, but also the open settings, patients newly arriving to the ward were sometimes encouraged to cooperate with doctors' assessments and nurses tasks based on the promise of a smoke break. Many nurses reported that being a smokerwas an advantage when establishing rapport with patients and performing assessments. Staff also said they felt left out and lacked a clinical edge once they became non-smokers. During the study period, it was reported by some staff that patients were being given cigarettes as an inducement to participate in training doctors' in vivo exams. Several social workers recounted how, when faced with agitated patients without cigarettes, doctors pressured nurses to respond and nurses pressured social workers to respond by organizing funds to purchase more cigarettes. It was also noted that institutionalized smoking and higher percentages of staff-smoking were found in wards where the Clinical Nurse Consultant in charge was also a smoker. The converse of this was noted when that person was a non-smoker.
Administrative reinforcement was seen in a number of ways. During the study period, the hospital canteen still held a tobacco license, with the sale of cigarettes contributing substantially to the canteen's overall revenue. Funds raised by the Op Shop adjoining the canteen were used to purchase cigarettes for indigent patients. The tobacco licence was subsequently withdrawn abruptly as a result of the study; however, no clear management of this process and its impact was put in place at the time, causing some problems for clinical staff, in particular, when dealing with indigent patients and extended detainees. The hospital had also a policy of subsidizing the board and care fees charged to long-term patients in extended care wards, with patients who were smokers receiving a lesser fee. Before and during the study period, the hospital had also no clear policy for addressing nicotine withdrawal for patients, especially those admitted to locked wards. Provision of Nicotine Replacement Therapy (NRT) as a core clinical pharmacy item was not seen as necessary, despite there being clear clinical protocols for patients who were admitted with alcohol withdrawal or withdrawal from other addictive drugs such as amphetamines. Passive smoking by staff and patients was commonly observed throughout the settings. The physical structure of the wards, especially the locked barrier doors between patients and staff, were observed to heighten the sense of conflict between them. The community hostels mirrored the interactions in the inpatient extended care wards.
Discussion
These results showthat a complex set of dilemmas exist in psychiatric settings with regard to smoking. These include balancing the right to smoke, the right to adequate standards of care and the right to safe work practices and environments. The issue of neglect and negligence, duty of care and informed consent will also be discussed in relation to these results. The US and Canadian mental health and US prison experience is used to inform the local situation, as much research on smoking bans has been performed in these countries. Recommendations relevant for psychiatric services will then be given.
These results raise several occupational health, safety and welfare (OHSW) concerns as well as legal implications for mental health services in this state. The grounds for compensation claims by staff who develop smoking related illnesses and who clearly commence smoking in the context of performing their role of dispensing cigarettes to patients is of concern. The grounds for compensation claims by patients are likewise concerning. Psychiatric institutions, like prisons, share similar dilemmas when attempting to address smoking and occupational health and safety for staff. These institutions are, ‘the workplace of some people and the living space of others’ [8], p.327]. Therefore, dilemmas exist in balancing rights and interests that exist for both parties, especially where they exist in conflict with each other. Balancing any rights of patients to smoke in their living space with the rights of staff to a smoke-free work environment becomes difficult, especially in locked settings where staff have designated roles in supervising patients while they are in the smokers' ‘cage’. The argument that the system of care appears to be largely responsible for the initiation, breadth and perpetuation of an extensive smoking culture with this setting must be considered when looking at the ‘rights’ argument. By looking at how the law has dealt with the topic, through the interpretation of ethics into practice by means of legal claims, a greater understanding and resolution of the dilemmas may be achieved.
Appelbaum [9] noted that the first lawsuit in the USwas a class action by patients of Fallsview Psychiatric Hospital in Ohio. These patients' claims regarding smoking bans as a violation of rights was overturned by the court on the basis that all rights granted by the law are subject to the limitation that they be consistent with health and safety; in this case-fire risk. There were continued challenges on the grounds that patients suffer significant morbidity from nicotine withdrawal and, where people are long-stay patients, some relaxing of these restrictions has occurred [10]. Appelbaum [9] also noted the dilemmas involved with written authorizations by physicians allowing smoking by some patients in circumstances where smoking was generally banned for other patients. The implications are that doctors could be seen to be prescribing smoking for some patients, with further legal implications involving the potential to be sued for contributing to subsequent morbidity and mortality. In these circumstances, Appelbaum questions the legal effect of attempts to institute consent forms waiving the subsequent right to sue hospitals. He questions this on the grounds that the person's capacity to understand may not have been established as part of this process, especially where they were detained patients in locked wards at the time.
According to the Australian Occupational Health Safety and Welfare Act 1986, there exists a ‘legal obligation of the employer to provide a safe working environment free of foreseeable and avoidable risks to health and safety for employees and others who may enter it’ [11], pp. [107–108]. Further to these developments, the Australian Federal Court decision of 1991, known as the Morley Decision, found that employers have the onus to take a positive role in protecting non-smokers. This legal obligation has been tested in the courts on a number of occasions in the past, with several successful claims against employers in a variety of work settings [11]. The South Australian studies show that breach of duty is also a complex notion because it must be shown clearly to be the cause of the damage. Staff in these studies argued that harm-minimization, by restricting the supply of cigarettes to patients in some wards and in hostels, meant that they were meeting their legal and duty-of-care requirements. In conflict with this activity, the absence of administrative support and training to recognize nicotine withdrawal, as well as no use of NRT, was noted in all settings [12].
It would seem that many of the reinforcing practices observed and reported in the South Australian studies were based on entrenched beliefs and attitudes about smoking and mental illness, in particular, that patients would not cope with smoke-free environment while acutely unwell. The results of several studies on smoking bans in psychiatric settings have shown favourable results with staff generally anticipating more smoking-related problems than actually occurred. These studies also found no increase in aggression, use of seclusion, discharge against medical advice or increased use of as-needed medication following the bans. Consistency, coordination and full administrative support for the bans were seen as essential to their success, with problems such as smuggling occurring where this was not the case. Nicotine Replacement Therapy was widely used by patients as part of coping with bans [13–19].
By comparison, the widespread imposition of smoking bans by the US Federal Bureau of Prisons in its 105 prisons from July 2004 has been the culmination of several years of legal battles by prison workers and inmates, largely involving debate about the right to smoke versus the right to clean air [20]. One example is Webber V Crabtree 9736014 in which four prisoners at an Oregon Federal Prison Camp sought relief from a smoking ban on the grounds that smoking was a fundamental right. The prison officials were able to challenge this by showing that the ban was rationally related to a legitimate government objective and that the Bureau of Prisons had a legitimate objective of protecting the health and safety of inmates and staff by providing a clean air environment. However, the court found that discretion to ban all smoking was not upheld and that designated smoking areas away from buildings were required [21]. This is one of many claims made within the prison system in the US by both prison workers and inmates [22]. As a consequence of these bans there have been many reported problems associated with smuggling, possibly because both prisoners' and guards' resistance has undermined the success of the bans. Alternative tobacco products such as smokeless cigarettes and chewable tobacco have been tried with mixed success [20]. This is confirmed by the findings from bans in psychiatric settings where inconsistency arising from partial bans tended to cause fragmentation, heightened tension and derision between the parties concerned [23–26].
The issue of negligence is also complex. It involves decisions about what an ordinary, reasonable person or ordinary, reasonable professional would regard as acceptable standards of care. Where there is reduced capacity, such as in the care of children (or when a psychiatric patient is acutely unwell), a higher standard of care is assumed [27]. Section 27C of the Wrongs Act speaks of vicarious liability whereby, if an employee is sued for negligence in the course of employment, then the employer must indemnify the employee, except in cases of wilful misconduct. In this instance, negligence may equate to not informing people of the harms of smoking when there are known risks. A hierarchy of accountability and neglect exists under these circumstances. Neither does the existence of a smoking policy by an organization necessarily protect it from litigation. If the employer is aware of the day-to-day activities involving acceptance and reinforcement of smoking, despite contrary policy guidelines, then this overrides any smoking-policy document presented to court [27]. In the case of the South Australian study, standover, barter and sex for cigarettes, as routine patterns of interaction between patients, were described as activities known by all levels of employees and representatives of employers at the inpatient and community settings. Hence, negligence is shown and the hospital could be subject to future litigation if these circumstances are not addressed. The production line of smoking routines in the locked settings in the absence of commitment to NRT options is also noted here. This involved patients lining up at the nurses' station door when beckoned by nursing staff to do so, in order to receive their hourly cigarette.
In addition to general concerns about negligence, negligent misstatement may exist for doctors, whose authority is trusted, where patients have said that their doctors have advised them to keep smoking. The failure of doctors in their duty to warn patients of the harms of smoking or to take action to treat their nicotine dependence and withdrawal clearly shows this principle, leaving doctors vulnerable to future litigation should patients develop smoking-related illnesses [27]. Inpatient doctors observed that the current study failed to diagnose and treat nicotine withdrawal. Some of the additional consequences of this were verbal and physical assault and intimidation by patients toward other patients and staff in order to get cigarettes. Exchanging sex for cigarettes between patients was also reported by staff to be a common occurrence. These activities and their consequences potentially heighten concerns about doctors' failure in their duty of care. Doctors in the community settings may also need to reviewtheir duty of care to patientswho are smokers, as shown by another Australian study, which found that approximately only half of smokers were given quit advice by their general practitioner (GP) [28].
The issue of negligence and duty of care is complex in relation to informed consent. As a demonstration of this complexity, the courts have held that there is no duty to provide information in every case, as exemplified by a South Australian case involving Battersby V Tottman (1985) SASR 524. In this case, the courts held that full disclosure of risks by the doctor was not appropriate because doing so was judged to be harmful to the patient's physical and/or emotional health. Full disclosure was also seen as inappropriate if the smoker was unable to make the information, a basis for rational decision-making at the time [27]. From this determination, clear parallels can be drawn with smokers with mental illness in situations of acute illness where they may not fully comprehend information given to them by the doctor, or where there might be concern that such information could exacerbate their illness at that time. Staff in the South Australian study spoke at length about how they gave action against smoking lesser priority while patients were acutely unwell. At such times, staff said patients were likely to become highly distressed or assault others in order to get cigarettes as part of experiencing acute nicotine withdrawal in relation to their high level of nicotine dependence. Staff therefore supported patients need to smoke as the less harmful response in the short-term. However, the lack of a policy to provide NRT is relevant here and would seem to override protection from litigation in such cases.
Recognition of the harms of environmental tobacco smoke (ETS) has been well-documented in the literature [29–31]. A Western Australian study of prison environments and ETS [32] found that 79% of the 225 staff and 135 prisoners surveyed were annoyed by ETS, with 47% reporting ill-effects of ETS. That study noted several examples of successful litigation in prison settings. Its findings suggest implications for mental health services where passive smoking by staff and patients was found to be part of the daily experience of work and care in the settings. Passive smoking concerns have been widely addressed as part of OHSW requirements for staff in many workplaces. However, patients do not currently enjoy the same protections available to staff in this respect. Instead, concern for their needs is part of general duty of care within the settings and it is questionable whether this adequately protects patients, given the overwhelming culture of smoking that currently exists in mental health settings. To breach duty of care, one must be proved to reasonably comprehend that duty of care. This may not be so for patients toward other patients, or for patients toward staff; however, it may apply to staff toward patients. In situations where patients are detained and acutely unwell, they are deemed to have diminished responsibility with limited decision-making capacity, similar to that afforded to children. In such situations the hospital has clearly a duty of care to protect patients from the harms of smoking and passive smoking. The example of a detained patient, who left the grounds of a Queensland hospital in 1996 and stepped into the path of a small bus in an attempt to commit suicide, shows this principle. The court found that the state of Queensland, as the operator of the psychiatric facility, owed a duty to take reasonable care in this situation [33].
Conclusions
There are a number of legal and OHSW implications for continued smoking by staff and patients within mental health settings. These include initiation into smoking while the person is unwell and duty of care held by the staff and hospital administration in recognizing the person's vulnerability to smoking. Staff roles and duties in dispensing cigarettes, supervising patients' smoking and purchasing cigarettes for patients, need to be considered. Linked to this is the nature of work, especially for nursing staff, where the temporal nature of activity in the settings is geared toward brief activities like smoking. The pressure on social workers to find funds to purchase cigarettes for indigent patients also needs to be considered. The use of cigarettes by nurses to clinically manage patients and the failure of doctors to diagnose and treat nicotine withdrawal are likely to be considered negligent. The use of cigarettes in the absence of commitment to NRT use for patients experiencing nicotine withdrawal in locked wards and assaults occurring as a consequence of this is also of concern. Declining rates of staff-smoking may lead to increased problems asmore staff refuse to perform duties involving the monitoring of patients' smoking during inpatient stays. Alternatively, there may be more concern for passive smoking and more likelihood of legal action as more non-smoking staff are forced into performing roles involving cigarettes because of the decline in staff smokers. These concerns are relevant to any institutional settings where the organization and its staff have a responsibility to provide care to a vulnerable or detained population. The recent acknowledgement of smoking by psychiatric populations as a priority for change by the National Tobacco Strategy [SA Tobacco Control Unit: personal communication], presents a unique opportunity to address many of the concerns raised by this paper. Systematic guidelines for such change, based on the Australian experience, need to be developed as has begun in the UK with the recent release of the National Health Service document ‘Where Do We Go From Here?’, which discusses management responsibilities, staff responsibilities and setting realistic goals for tobacco control within psychiatric settings [34]. Some preliminary recommendations for addressing the concerns raised here are:
that psychiatric hospitals move toward imposing smoking bans as a priority for staff, patients and visitors in line with general hospitals; for psychiatric settings to develop clear guidelines that reflect strong leadership and involvement and commitment by staff at all levels and with clear administrative support and resource allocation to achieve a smoke-free environment; widespread clinical availability of free NRT in psychiatric settings as a treatment protocol for patients, as well as comprehensive resource materials and support for quitting; greater availability of NRT (possibly at discount prices), education and support to quit for staff; for staff of all disciplines, but especially doctors, to receive education and support to effectively recognize and treat patients' nicotine withdrawal; that hospitals be encouraged to seriously consider showing preference to new staff who are non-smokers and to appoint non-smoking nurses to be in charge of wards, as part of general employment practices; that more meaningful rehabilitation activities be a priority for patients in inpatient psychiatric settings and the community; ensuring that Schools of Nursing and Medicine adequately cover education about the smoking issue from a clinical, ethical and legal perspective; that mental health services work assertively with young people with mental illness to discourage them from taking up smoking and to support those who do smoke to quit early; and that smoking cessation support programs be set up specifically for mental health service users and for these programs to be subsidized by government funding.
Footnotes
Acknowledgements
The author thanks John Harley (Public Advocate, South Australia) and Owen Ames (Legal Services Commission, Adelaide) who provided advice on ethical and legal aspects of the research findings. Rene Pols (Consultant Psychiatrist/Flinders Medical Centre and Senior Lecturer/Flinders University) and Jim Barber (formerly of the School of Social Work and Social Administration, Flinders University) also offered support and advice as PhD supervisors of the South Australian research on which this paper was based.