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« 50th anniversary of the tangerine dream | Main | Hospital declines to reveal under what law it can fine smokers for lighting up »

Can NHS trusts in England fine smokers for lighting up on hospital grounds?

Leicestershire Live reports:

Outlawing smoking on hospital sites is the only way people could be stopped from lighting up outside Leicester's hospitals, according to the man who is in charge of them.

Chief Executive of Leicester's Hospitals, John Adler said that he has considered lobbying central government to add hospital campuses to list of places where it is illegal to smoke.

According to Adler

“What would have made things easier for us is that if when smoking was outlawed in other public places, that the ban included hospital sites.

“Looking back, it would have made sense for that to happen and it’s a shame that no one thought to do it then.

“We have signs placed around the campus and shelters but it is very difficult for us to enforce.

“It is something I have considered lobbying the government about, with the law as it is, it is very difficult for us to stop people smoking outside and near to our buildings and on our sites.”

The report appeared this morning and follows the announcement earlier this week that Sandwell and West Birmingham NHS Trust is to fine smokers caught lighting up on their hospital grounds.

How is it possible for one hospital trust to fine smokers while another one can’t?

I took a closer look at the email I received yesterday from the Sandwell and West Birmingham comms team.

The last paragraph read:

The Trust employs directly smoking wardens and security staff plus an external provider, accredited by the Community Safety Accreditation Scheme (CSAS).

According to the government website:

CSAS is a voluntary scheme under which chief constables can choose to accredit employed people already working in roles that contribute to maintaining and improving community safety with limited but targeted powers. These roles include neighbourhood wardens, hospital security guards, park wardens, shopping mall guards and train guards.

The scheme creates a framework for public and private bodies to work in partnership with the police, providing additional uniformed presence in communities and capitalising on the skills and information captured by those already engaged with the community.

Accredited persons may be given ‘all, some or none’ of a number of powers. The government website lists 22 including the power to issue penalty notices for disorder, truancy, dog fouling, cycling on a footpath, graffiti, fly-posting and littering.

Nowhere does it mention the power to issue penalty notices for smoking in an outdoor public place (specifically, hospital grounds).

Tobacco does get a mention but only in one, very specific, regard. The CSAS gives accredited persons the ‘power to seize tobacco from a person aged under 16’.

Other CSAS powers concern begging, traffic control, the removal of abandoned vehicles and the under age possession of alcohol.

Again, no mention of smoking.

The CSAS also gives accredited individuals the power ‘to issue fixed penalty notices in relation to offences against certain bye-laws’ but to the best of my knowledge there is no bye-law in Birmingham making it an offence to smoke on hospital grounds.

If there was surely the Sandwell and West Birmingham Hospitals Trust would have said so in their email to me yesterday.

There is of course the catch-all offence of ‘disorder’ but I’ve yet to hear smoking described in those terms. Indeed, the list of ‘offences for which accredited persons may issue a fixed penalty notice for disorder’ is a long one but it doesn’t include smoking on hospital grounds.

Instead it includes wasting police time, behaviour likely to cause harassment, alarm or distress, throwing fireworks, selling or attempting to sell alcohol to a person who is drunk, the sale of alcohol anywhere to a person under 18, trespassing on a railway, throwing stones at a train, and using public electronic communications network to cause annoyance, inconvenience or needless anxiety to another.

Based on what I have read I am struggling to see how Sandwell and West Birmingham Hospitals Trust can use the scheme to issue penalty notices and fines for smoking on hospital grounds.

The Trust also declares that:

On being seen smoking on our grounds, smoking wardens will request that the individual stops smoking and explain our smokefree policy.

Should the individual refuse and persist in smoking, the warden will take the name and address of the individual and will check their identity. The Trust will then issue then with a letter with the date, time and location of being seen smoking, an invoice, information about how to appeal ... etc.

The Community Safety Accreditation Scheme does indeed give accredited persons the ‘power to require name and address’ but only for road traffic offences, anti-social behaviour, or if there is reason to believe a person ‘has committed a relevant offence’.

Smoking on hospital grounds is not yet an offence so why should smokers be expected to give their name and address to a complete stranger, accredited or otherwise?

Finally, when I was searching for information about the Community Safety Accreditation Scheme last night I found this 2015 briefing document from the Manifesto Club - Should private security guards have police powers? Analysis of the Community Safety Accreditation Scheme.

I urge you to read the whole thing. It’s a real eye-opener. Here’s a taste:

The most widespread power is the power to request name and address. In practice, this means that the accredited person can pass on information about an individual to the police - for example, to recommend that they receive a Penalty Notice for Disorder. It also means that council officials can compel a member of the public to give their name and address (for the receipt of a litter fine, for example). Thus litter authorities gain a compulsive power previously only associated with the police.

Many accredited organisations, including councils and private security companies, also have the powers of alcohol and tobacco confiscation. Alcohol confiscation powers, provided for in the Criminal Justice and Police Act 20013, mean that an official can require an individual to stop drinking, or to hand over their alcohol. There are no specified limits on how the power may be used. A person does not have to be behaving in a disorderly manner; it is only required that the officer ‘reasonably believes that a person is, or has been, consuming...alcohol’.

Finally, and most worryingly, some accredited persons have been given power to issue Penalty Notices for Disorder (PND). These on-the-spot penalties for criminal offences can be recorded on the Police National Computer, and return on people’s enhanced CRB checks. Our survey found that 34 accredited organisations have the power to issue PNDs, including private security companies, shopping centres, and transport companies. Accredited persons can issue PNDs for offences including: causing ‘harassment, alarm and distress’ (Public Order Act); use of ‘public electronic communications to cause annoyance’; the sale of alcohol to under-18s; and for refusing a request to surrender alcohol.

This then is the scheme that Sandwell and West Birmingham NHS Trust intends to employ to bring smokers to heel.

Can it really be used to target and fine smokers? It’s open to interpretation (anti-social behaviour?) but it’s revealing that no other NHS trust has used the CSAS to punish smokers.

Indeed, according to the chief executive of Leicester's Hospitals, the only way people can be stopped from lighting up on hospital sites is to outlaw it completely which leaves the question:

Is the Sandwell and West Birmingham Hospitals Trust bluffing?

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Reader Comments (4)

The wardens will no doubt harrass and intimidate smokers, some may answer back or swear at being bullied and bingo - the offence of causing alarm harassment distress or disorderly behaviour is made out. The trust's jackboots are there to provoke trouble from smokers so they fall foul of the laws that these thugs can then enforce.

Shameful, disgusting and definitely anti social behaviour on the hospital's part. Smoking in itself is not anti social however much the hate campaign against law abiding legitimate consumers is trying to persuade people that it is..

Only a relative handful of intolerant smokerphobic snobs find smoking anti social. The vast majority of the general public couldn't care less, if, for example, smokers use a designated shelter.

There is no reason for Birmingham trust's action against smokers except hatred. The hospital should be fined for discriminating against one targeted group of patients. The NHS was never founded to be abusive, threatening or discriminatory.

Something must be done in law to protect people from hospital abuse.

Saturday, July 13, 2019 at 13:41 | Unregistered CommenterPat Nurse

The answer Pat is to totally ignore any person who attempts to force you to stop smoking and if they lay a hand or start shouting at you, have a witness that you are being assaulted and call the police. If they persist do not resist, carry on smoking and still ignore them, nothing infuriates would be plastic cops more.

Saturday, July 13, 2019 at 15:01 | Unregistered CommenterDavid Kerr

Keep calm and don't retaliate is the sensible response but some people won't do that. Some will be in emotional states, and perhaps trying to find a moment of contemplation away from a sick relative's bedside and, frankly, not in the mood for a lecture about smoking. Naturally, some smokers will react if provoked in this way. The hospital trust must know this - or is its board completely anti human?

Saturday, July 13, 2019 at 19:39 | Unregistered CommenterPat Nurse

..will the wardens be wearing brown shirts ?

Monday, July 22, 2019 at 20:41 | Unregistered CommenterJohn HOLMES

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