Health, Social Care and Sport Committee

Meeting date: Tuesday, June 28, 2022

Official Report 677KB pdf

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Subordinate Legislation

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Health (Tobacco, Nicotine etc and Care) (Scotland) Act 2016 (Supplementary Provision) Regulations 2022

Our third item today is consideration of an affirmative instrument. The purpose of the regulations is to ensure that environmental health officers are able to issue fixed-penalty notices in respect of the offence of smoking in a no-smoking area outside a hospital building and the offence of failing to comply with signage requirements at entrances to hospital buildings, regarding the no-smoking areas outside those buildings.

The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 21 June 2022 and made no recommendations in relation to the instrument.

We will have an evidence session with the Minister for Public Health, Women’s Health and Sport and a supporting official on the regulations. Once we have had all our questions answered, we will have the formal debate on the motion.

I welcome again to the committee Maree Todd, the Minister for Public Health, Women’s Health and Sport. I also welcome Jules Goodlet-Rowley, head of the healthy living unit in the Scottish Government, who is accompanying the minister online.??I invite the minister to make a brief opening statement.

Thank you for inviting me here to discuss the regulations, which make supplementary provision to the legislation that created the no-smoking perimeters around hospital buildings. Today, I seek your agreement to giving designated officers of local authorities the power to issue fixed-penalty notices in respect of two new offences relating to the ban on smoking outside hospital buildings.

There are three new offences relating to the ban. Without this Scottish statutory instrument, local authority officers such as environmental health officers would be able to issue fixed-penalty notices only in respect of one of those three offences. The regulations will enable local authority officers to issue fixed-penalty notices in respect of the other two offences, too.

As the committee previously noted, the prohibition on smoking outside hospital buildings requires effective enforcement to ensure compliance, especially during the introduction of the 15m boundary. It was the intention that local authority officers would lead on the enforcement of the ban, much as they led on the enforcement of the indoor smoking ban. However, as drafted, the provisions for enforcement of the ban do not fully reflect that intention. That issue was identified only after the Prohibition of Smoking Outside Hospital Buildings (Scotland) Regulations 2022 were made earlier this year.

The ban on smoking outside hospital buildings will come into force on 5 September 2022. On that date, section 20 of the Health (Tobacco, Nicotine etc and Care) (Scotland) Act 2016 will amend the Smoking, Health and Social Care (Scotland) Act 2005. The 2022 regulations will also come into force.

The 2005 act, once amended, will contain three new offences relating to the new ban: knowingly permitting people to smoke in a no-smoking area; smoking within a no-smoking area; and failing to conspicuously display no-smoking notices at the entrances to hospital buildings. The 2005 act will also give the police and local authority officers such as EHOs powers to issue fixed-penalty notices in respect of those offences. However, only the police will have the power to issue fixed-penalty notices in respect of all three offences. EHOs will have the power to issue fixed-penalty notices only in respect of the first offence: allowing people to smoke in a no-smoking area.

As the intention is for EHOs to lead on enforcement, it is critical that EHOs also be able to issue fixed-penalty notices in respect of the other two offences, particularly the offence of smoking in a no-smoking area. Giving EHOs that power will ensure effective enforcement of the perimeter ban.

I am sure that we all agree that hospitals should be places of health promotion where healthy ways of living are demonstrated. They should be environments in which people are protected from harm and supported in making positive lifestyle choices. The sight of people congregating near doorways to smoke outside our hospitals is incongruous to that. The no-smoking perimeter will reduce the risk of exposure to second-hand smoke near entrances and windows. It will prevent smoke from drifting into hospital buildings and protect people who use hospitals, particularly the vulnerable.

The regulations that we are discussing will help to deliver the effective enforcement of the ban that committee members called for during passage of the Prohibition of Smoking Outside Hospital Buildings (Scotland) Regulations 2022 earlier this year. They provide local authority officers with the same enforcement powers as are granted to Police Scotland, which has indicated that it would be operationally difficult for the police to be solely responsible for enforcement.

This is a team effort. We have been working with health boards, local authorities, Police Scotland and others to bring the ban to fruition. Without the additional powers, we limit the effectiveness of the restrictions even before they come into force. I urge the committee to pass the regulations and help us to stop smoking near Scotland’s hospitals.

Thank you, minister. I invite questions from committee members on the regulations.

As a doctor, I am obviously supportive of the idea of not smoking around the entrances to hospitals. I have seen people smoking outside the children’s hospital in Glasgow, with the smoke going up to the children inside.

I have a few questions. NHS Forth Valley has been trying to enforce no-smoking areas. It has introduced big cross hatches, and somebody goes around telling people not to smoke. That person gets an awful lot of abuse. I understand that we will allow environmental health officers to issue fixed-penalty notices, but how do we prevent such abuse?

That is a challenge in healthcare environments across the board. It is really important that we think about the cultural impact of such legislation. It gives clarity and certainty to people in Scotland. They will know that hospitals do not allow smoking within their perimeters. I think that that alone will reduce the level of conflict in implementing the ban.

There was a lot of concern in advance of the smoking ban about how the ban would be implemented. Before the ban, there was often friction around how no-smoking areas were implemented. The smoking ban brought clarity to the situation. People know that they are not allowed to smoke and that there will be consequences if they do so. It is not simply a matter of appealing to their good nature; there is the potential for issuing a fine should they not comply with the legislation. That brings clarity and reduces conflict.

For clarity for everyone, will you define smoking? Obviously, using cigarettes is smoking, but does smoking include use of heated tobacco and vaping? Some people would say that there is no nicotine in their vape, so they should be allowed to do that. Can I have some clarity on that, please?

The use of nicotine vapour products is not affected by the regulations. We do not have the power to include NVPs in the regulations, because they were not included in the 2016 act. The permitting of NVP use within the perimeter of hospital grounds will continue to be at the discretion of each health board. I know that that is likely to lead to a lack of clarity.

The evidence on the safety or otherwise of second-hand exposure to vapes is not yet clear. I think that vapes are potentially a useful tool for smoking cessation, and they are likely to be less harmful than smoking tobacco is, but I am deeply cynical about the efforts of tobacco companies to market them widely and to ensure that they find a replacement market with the reduction in smoking. We need to go very carefully with our use of vaping products in health promotion.

I would not rule out looking at vaping products should the evidence firm up that second-hand exposure is problematic. I would not rule out including them or considering future legislation on that. It seems to me that new primary legislation would be required, given that the 2016 act does not give us the ability to regulate.

I am sorry, but I have a final question about vaping, minister. I agree that vaping can be quite an effective tool to help the cessation of cigarette smoking, and it probably has a significantly lower risk than smoking. However, when I walk into anywhere, to be honest, but especially a hospital, I do not particularly want to be faced with a cherry-smelling—or whatever-smelling—cloud. That is what happens with a vape. Even though there might not be evidence about second-hand harm, I urge you to look at vaping and include it in the legislation so that we have absolute clarity that people cannot smoke at all around a hospital.

I am certainly willing to take on board your view on that. We will be looking at issues around vaping. We have had a consultation on the regulation of vaping, and we will look at some of those issues later in the year. I am willing to take on board your view on that, but, as I understand it—perhaps Jules Goodlet-Rowley can come in on this—primary legislation would be required, because the original act, which allowed me to bring the SSI before the committee, did not include vaping. We would be required to look at primary legislation on vaping, and that would be an altogether larger task. However, I am certainly willing to keep that on the radar and include such provision should the opportunity arise in future.

We try hard to make all our legislation evidence based. The evidence on second-hand harm from vaping is not particularly solid or clear yet, and I think that it would be hard to introduce primary legislation on that front right now. However, I ask Jules Goodlet-Rowley whether she has anything further to add on that. She is more familiar with the 2016 act than I am.

At the moment, we do not have the powers to regulate NVPs within the regulations, and permitting the use of NVPs within the perimeter of hospital grounds will continue to be at the discretion of each health board.

In a perfect world, we would have foreseen that technology when we wrote the original legislation.

Thank you for that helpful exchange.

11:15  

I remember an anaesthetist telling me that people used to smoke right under the windows of the ear, nose and throat ward so, when she woke from her anaesthesia fog after a tonsillectomy, she smelled cigarette smoke. I therefore welcome the instrument.

As the co-convener of the cross-party group on lung health—and a nurse—I am keen to hear what measures are being taken to help health boards, local authorities and health and social care partnerships to educate people about the legislation, so that it is easier to enforce as we move forward.

You are absolutely right to talk about how smoke drifts into hospital buildings from outside. For 20 years, I worked as a hospital pharmacist. I have asthma and am one of those people in the workforce who would wheeze as I accessed areas of my workplace where smoke was. Our air conditioning literally pulled smoke in from the smoking area and pumped it into the ward. That is not unusual.

We need to think about the exposure to second-hand smoke that such things cause for staff, patients accessing care and everyone who visits the hospital. That is why the measure is really important. When it comes to raising its profile, today is a busy news day, but I suspect that it will make the news when it is introduced, and be covered by our national news outlets. I also expect the signage at hospitals to be clear.

The two-week run-in—which was not our intention—gives a little time for awareness to be raised about the change on smoking around hospitals, before people face fines for breaking the rules. That is probably helpful. I would hope, therefore, that there will be absolute clarity to everyone that people cannot smoke near hospitals.

Will you confirm again the go-live date? Did you say that it was 8 September?

I think that it is 5 September and that two weeks later—on about 20 September—the SSI will mean that environmental health officers can use fixed penalty notices.

I have a brief question about the financial effects. Previously, I asked the cabinet secretary this question, on the funding for environmental health officers to carry out the measure. I appreciate that the paragraph on financial effects states:

“Local Authorities are already funded to undertake tobacco ... work”.

I am conscious that there may be a higher number of hospitals in the city of Edinburgh and Glasgow city than in other local authority areas, so there will perhaps be a corresponding pressure on those teams. I suppose that I am just looking for an assurance that, if costs are exorbitant or add pressures for particular departments, that will be monitored by the Government and any adjustments will be made if required.

Absolutely. I expect the instrument to be effective in preventing the problem, but you are right: if financial costs arise that have not been predicted, we would be more than happy to hear from local authorities.

As a Highlander, I have to say that, although Edinburgh might have more hospitals, a lot more travelling distance would be involved in monitoring the hospitals in the Highlands and Islands. Those are just the challenges that our local authorities and health boards face.

That is fair, and it is good of you to remind me of my central belt bias, which often accidentally slips out.

Given that there are no further questions, we move to item 4, which is the formal debate on the made affirmative instrument on which we have just taken evidence. I remind the committee that members should not put questions to the minister during the formal debate; and officials may not speak.

Minister, do you wish to say anything further on motion S6M-04798, before I invite you to move it?

No, thank you.

I invite contributions to the debate.

I just reiterate that it is important that we include all products including vaping.

In response to Dr Gulhane, I want to make a wee comment about vaping. As someone who has given up smoking and currently vapes, I have personal experience. Statistically, you are twice as likely to give up smoking using vaping as you are using nicotine gum. The nicotine is pretty harmless in that form and you do not get the carbon monoxide and so on. Therefore, I think that there is a balance to be struck, as well. We do not have the information and evidence to back it up yet, but the consensus across the NHS and elsewhere seems to be that vaping is much less harmful than smoking cigarettes. On a balanced approach, having more people vaping and more patients who have been long-term smokers switching to vaping could have a really positive impact overall.

I agree. I said earlier that I agree that vaping has an important potential role to play in the reduction of cigarette smoking. I do not know of many things that could be worse than cigarette smoking when it comes to harm, quite frankly.

We know that vaping will cause less harm, but the point that I am trying to raise is that vaping produces a big cloud of smoke. You might not be one of the people who does that in certain areas but, if I am walking up to a hospital, through hospital doors or in the grounds, I do not want to be faced with that big plume of smoke. Even though we do not have a lot of evidence about its effects, I would not like to be walking through that. If everyone is vaping outside the entrances, that is absolutely not what I would like to see.

I think that we could have a balance. We heard from the minister that we cannot put vaping in, because that needs primary legislation—that is absolutely fair enough—but we should be looking for a way of ensuring that there is clarity that people should not smoke on hospital grounds and that they do not vape there, either, because I just do not want to be walking through a cloud of smoke.

As there are no further contributions, I ask the minister to sum up and move the motion.

I am not sure that I have much to contribute on the vaping debate. It is clear that, for people who are choosing vaping as a means of smoking cessation, it is less harmful than smoking; there is absolutely no doubt about that. However, there are some concerns around the contribution to health inequalities and the attractiveness to children and young people, and there are real concerns around the role of vaping in the future, which we need to consider carefully.

The Scottish Government has a commitment to a tobacco-free generation, in contrast with the Government down south, which is committed to a smoke-free generation and is actually very pro-vaping. At the moment, I am quite open-minded, but sceptical and cynical about the role of the tobacco industry and how those cessation needs are portrayed. That is the Scottish Government view on vaping.

I move,

That the Health, Social Care and Sport Committee recommends that the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016 (Supplementary Provision) Regulations 2022 be approved.

Motion agreed to.

That concludes consideration of the instrument. I thank the minister and her officials for attending.

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National Health Service (Charges to Overseas Visitors) (Scotland) Amendment (No 2) Regulations 2022 (SSI 2022/213)

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Public Health etc (Scotland) Act 2008 (Notifiable Diseases and Notifiable Organisms) Amendment Regulations 2022 (SSI 2022/212)

The fifth item on our agenda is consideration of two negative instruments, which were laid on Thursday 16 June and came into force on the same day. The Delegated Powers and Law Reform Committee considered the instruments at its meeting this morning. It decided to draw them to the attention of the Parliament on reporting ground (j) for failure to comply with laying requirements in section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010. However, the DPLRC is content with the explanation provided by the Scottish Government for failure to comply with the laying requirements.

The first instrument is the National Health Service (Charges to Overseas Visitors) (Scotland) Amendment (No 2) Regulations 2022. It ensures that certain NHS services for any overseas visitor who requires diagnosis or treatment for monkeypox are provided without charge to that overseas visitor.

No motions to annul have been received in relation to the instrument.

As no member has any ?comments,?I propose that the committee does not make any?recommendations in relation to the?instrument.?Do members agree with that?

Members indicated agreement.

The second instrument is the Public Health etc (Scotland) Act 2008 (Notifiable Diseases and Notifiable Organisms) Amendment Regulations 2022 (SSI 2022/212). These regulations will trigger duties on registered medical practitioners to share information with health boards where they have reasonable grounds to suspect that a person they are attending to has monkeypox. That information must then be shared onwards to the Common Services Agency and Public Health Scotland.

The regulations will also have the effect, if monkeypox virus is identified by a diagnostic laboratory in Scotland, that the director of that laboratory must provide information to the health board in the laboratory’s area and to the Common Services Agency and Public Health Scotland.

No motions to annul have been received in relation to the instrument.

As no members have any?comments, I propose that the committee does not make any recommendations in relation to the?instrument. Do members agree with that?

Members indicated agreement.

This is the final meeting of the committee ahead of the summer recess. Further details of our next meeting will be published towards the end of August.

That concludes the public part of our meeting.

11:26 Meeting continued in private until 12:07.