Health, Social Care and Sport Committee

Meeting date: Tuesday, March 29, 2022

Official Report 599KB pdf

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Subordinate Legislation

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Prohibition of Smoking Outside Hospital Buildings (Scotland) Regulations 2022 [Draft]

Agenda item 3 is consideration of an affirmative instrument. We will take evidence from the Cabinet Secretary for Health and Social Care, Humza Yousaf, and Scottish Government officials Claire McGill, solicitor, and Jules Goodlet-Rowley, head of the healthy living unit, who are joining us online. Once all the committee’s questions have been answered, we will have a formal debate on the motion.

I believe that you have an opening statement, cabinet secretary.

Thank you very much, convener, and thank you for letting me stay on to talk about these important regulations, at the heart of which lies the proposal to set up no-smoking perimeters around NHS hospital buildings.

As we will all agree, hospitals should be places of health promotion, where healthy ways of living are demonstrated, and environments in which people are protected from harm and are supported in making positive lifestyle choices. Unfortunately, though, it has become commonplace to see patients, visitors and, at times, staff standing and smoking close to hospital buildings and their entrances, despite an existing voluntary ban on smoking on hospital grounds. Those entering and leaving buildings, some of whom are vulnerable and very unwell, might have to walk through smoke, and there is no means of reproaching those who ignore the request not to smoke.

Our current tobacco action plan, “Raising Scotland’s Tobacco-free Generation”, confirmed our intention to progress the work that is needed to introduce a mandatory ban on smoking near hospital buildings. The regulations support the existing voluntary ban by introducing fixed penalties and fines for those who smoke near hospital buildings or who allow others to smoke there. By effectively extending the successful 2005 ban on smoking in enclosed public spaces to areas outside buildings, they reduce the risk of exposure to second-hand smoke near entrances and windows and prevent smoke from drifting into hospital buildings, ultimately protecting those, particularly the vulnerable, who use hospitals. Because smoke from a single cigarette can be detected from at least 9m away, and because weather conditions and wind speed can cause further drift, we propose a perimeter of 15m, focusing on the high-traffic areas where people leave and enter buildings.

Just like the indoor smoking ban, the regulations are primarily about behaviour change. They denormalise the act of smoking by making it socially unacceptable to smoke near hospital buildings, and they reinforce the NHS as an exemplar of health promotion. Smoking can be a hard habit to break, and people are advised to seek support in doing so. Anyone smoking within the perimeter could receive a fixed penalty of £50, and any individuals who are taken to court could be liable to a fine not exceeding £1,000. Those who manage and have control of the no-smoking area are responsible for ensuring compliance, and should they knowingly permit someone to smoke there, they could be fined up to £2,500.

We will ask health boards and those who manage and have control of the area to work with local authorities on enforcement initiatives and arrangements to ensure compliance. The Scottish Government will provide all signage for hospitals, prepare information and ensure that everyone is aware of the change before it is introduced.

Every year, tobacco use is associated with more than 100,000 smoking-attributable admissions and, unfortunately, 9,332 deaths—in other words, one fifth of all deaths. It contributes significantly to Scotland’s unfair and unjust health inequalities as both a cause and an effect.

Smoking rates have reduced from 31 per cent of the adult population in 1999 to 17 per cent in 2019, but we still have some way to go if we are to meet our ambition of 5 per cent or less by 2034. When asked, 66 per cent of smokers say that they want to quit, and I also note that a clear majority—over 70 per cent—of respondents to the 2019 consultation on the regulations support the proposals and see the benefits of removing tobacco smoke from NHS properties. It is now time to make that a reality.

I am happy to take the committee’s questions.

Thanks very much, cabinet secretary. A couple of members want to ask questions.

Thank you for the statement, cabinet secretary. As you outlined, the legislation attracts a degree of support. My question relates to the responsibility for enforcement. The big challenge with many such interventions is that if they are not enforced, people will often become frustrated. I note from the meeting papers that the duty to enforce will fall on local authorities and their environmental health officers. What does that mean in terms of financial implications for local authorities? I refer to my entry in the register of members’ interests as an out-going local authority councillor.

We know that, throughout the pandemic, there was extra pressure on environmental health teams due to enforcement of coronavirus regulations, and we know that that came with a cost. I notice from the paragraph in the report on financial effects that there will not be additional funding, because it is expected that additional costs will be covered from existing budgets. However, I am sure that the cabinet secretary will agree that local councils are stretched, and that there are huge challenges with the finance that is available. What scope is there to review the workload as the legislation is implemented and to consider what extra resources might be required?

That is a good point, and I will say two things. Although there is a potential fixed penalty if someone does not comply, we hope that the introduction of the regulations, if they are passed, will enact behavioural change. I think that the vast majority of people will behave responsibly and make sure that they are outwith the perimeter if they want to smoke.

The second point is important—I agree with Paul O’Kane that we will keep the issue under review. In the local government settlement, there is baseline funding of £2.8 million for Scotland’s local authorities to support measures that relate to tobacco control. There is baseline money there, so we do not think that there is a need for additional funding—certainly that need has not been articulated to me by COSLA. However, I will commit to keeping that under review, as Paul O’Kane has requested.

Cabinet secretary, behavioural change is very important—of course it is—but I will give you two examples of the issue here. When I was at Yorkhill children’s hospital, people were smoking by a big sign with a picture of a sick child on it that said, “Please don’t smoke here—it drifts up to my window”.

Forth Valley royal hospital has done more than I have seen other hospitals do. When I was there, it had big signs everywhere, and there was cross-hatching on the floor that said, “Do not smoke here”. The hospital employed somebody who went round telling people not to smoke there. He tried to take details and issue fines, which was the right thing for him to do. He is a lovely guy, but people just abused and ignored him, as they ignore the other measures. If someone is standing in front of a picture of a sick kid and smoking, it will be really difficult to effect behavioural change.

Initially, like the indoor smoking ban, the measure needs to be policed, and it needs to be policed with teeth. I am picking up that point from Paul O’Kane as well. We need to police that really well, particularly at the start, in order to kick-start behavioural change. Will you look at that again to see what we can do to really clamp down in those initial phases?

The point is well made. If the regulations are passed by the committee and Parliament, we will ensure that there is good education and public knowledge about them before they come into force in September. There would be time for us to ramp up the communications around them, which it is really important for us to do.

I take Sandesh Gulhane’s point that people might not be paying attention to the voluntary ban that is in place. If someone is smoking, even if there are pictures of sick children on signs that say not to smoke, because the smoke potentially drifts up to their room, that is where the enforcement element could be quite crucial. If you end up paying that fixed penalty of £50, it is a really expensive fag to smoke. When the regulations first come into force, some health boards, in conjunction with local authorities, might choose to ensure that they are clamping down on those who are ignoring them.

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I would expect there to be a sensible approach to enforcement, as there has been throughout the pandemic. Enforcement of the ban would not be heavy-handed to begin with but, if people ignore it and continue to ignore it, that option of a fixed penalty exists. Across the country, we may well see some people being hit in their pockets and realising that this is something that has to be done—it is not voluntary. I hope that the vast majority of individuals who smoke will understand the change in the regulations through our communications and will comply.

I am interested in how the regulations will be communicated to the local authorities and health boards. As a nurse, I know about the exacerbations of chronic obstructive pulmonary disease that lead to hospital admissions. A respiratory care action plan is now being developed and will then be delivered. Tomorrow, I am heading to Belfast to talk at a Border and Regions Airways Training Hub—BREATH—project event, which is about COPD causes, prevention and treatment. It is welcome that we have these regulations. How will they be communicated to our local authorities and health boards?

We will provide signage and we will work on providing information on the ban. Enforcement information will be available to patients in different languages as well, which is quite important, although the “No smoking” symbol is internationally recognised and that is why it is used. That being said, the information on the ban is really important, so we will work closely with health boards on that.

If the regulations are passed—and I have every confidence that they will be—the period between now and the regulations coming into force will be really important for us. We will make sure that the information about the ban is communicated well, that there is a lot of attention on the ban’s coming into force, and that the consequences of ignoring it are in place. That is all being discussed with local partners in advance of the regulations being passed.

Do you see any difficulty around enforcement if a 15m no-smoking zone encompasses areas that are not part of hospital grounds, such as public footpaths?

Potentially, people might think that they are far enough away. That is why the signage will be really important, to continue to reinforce the message that people are still within the no-smoking perimeter.

My hope is that, for the vast majority of people, that walk of 15m away is enough for them not to light up and have a cigarette. However, some people will still wish to smoke. That is why we need a period of time to remove smoking shelters, for example, from within that 15m boundary and make sure that they are outwith that boundary.

If there are areas for smoking outwith the perimeter, I hope that people will be cognisant of footpaths and other areas that people walk in, because if you are not a smoker, having to walk past a crowded smoking shelter and catching that second-hand smoke is an unpleasant experience. We know the dangers of second-hand smoke, which have been well articulated by a number of studies and third sector organisations—in particular, there is the good work that the Roy Castle Lung Cancer Foundation does in that regard.

To follow on from that point, I understand that the regulations cover hospitals, particularly—

Yes.

Does the cabinet secretary feel that there is scope to extend that? We now have a number of new-build health and social care centres—very often in our town centres—that are well used, have treatment rooms and all the rest of it, so is there a sense that we should be looking to extend that ban across the estate more widely?

The short answer to that is yes. We already have the voluntary ban in place for NHS hospitals—I should point out that it is NHS hospitals that we are talking about here—and it is perhaps easier to turn that voluntary ban into something statutory.

The problem is probably more acute in our hospital sites, given their size and scale. It is maybe less pronounced in a GP surgery, for example. I am not saying that it is impossible, but you are less likely to come across somebody smoking at the entrance of your GP surgery than at a hospital site.

I am definitely open minded about that suggestion, but I hope that members understand the logic behind progressing with this step first.

As there are no more questions from colleagues, we will move on to agenda item 4, which is the formal debate on the made affirmative instrument on which we have just taken evidence.

I remind the committee that, during the formal debate, members should not put questions to the cabinet secretary and officials may not speak. I invite the cabinet secretary to move motion S6M-03434 and to speak to the motion, if he wants to do so.

I have no remarks to make.

Motion moved,

That the Health, Social Care and Sport Committee recommends that the Prohibition of Smoking Outside Hospital Buildings (Scotland) Regulations 2022 be approved.—[Humza Yousaf]

Motion agreed to.

That concludes consideration of the instrument. I thank the cabinet secretary and his officials for attending today’s meeting. At our next meeting, on 19 April, the committee will take evidence from the Auditor General for Scotland on Audit Scotland’s “NHS in Scotland 2021” report.

That concludes the public part of our meeting today. Thank you all.

11:36 Meeting continued in private until 11:58.