Smoking allowed: Is hospital policy a liability risk?

Smoking bans have been opposed on grounds that they abridge psychiatric patients’ rights and are unduly coercive.^21,22 In the United States and United Kingdom, however, legal actions to block smoking bans have not succeeded, and courts have not recognized a fundamental “right to smoke.”^23-25

Is allowing smoking malpractice?

Now that many psychiatric facilities have ended smoking, clinicians may worry—as does Dr. A—that we could incur malpractice liability if we let inpatients smoke. One of my University of Cincinnati law students, Amanda Smith, and I researched this topic and found no case report that said letting psychiatric inpatients smoke violated the standard of care.

This makes sense, because in the malpractice context, a practitioner is judged by what prudent, similarly situated physicians with similar training would do in similar circumstances. Many psychiatric facilities still permit smoking, so letting patients smoke does not breach the standard of care, even if it seems negligent.²⁶

The ill effects of smoking accrue over years, not weeks or months. Almost all patients who smoke in hospitals also have smoked before hospitalization, and most smokers who are barred from smoking while inpatients resume soon after discharge. To succeed, a malpractice lawsuit must show that the defendant’s actions caused damages. A jury might find it hard to conclude that a permissive hospital smoking policy was the primary cause of a long-term smoker’s health problems.

4 other concerns

Nonsmokers’ rights. Arrangements at Dr. A’s hospital expose nonsmokers to secondhand cigarette smoke, which raises the possibility of legal action by nonsmokers. In 1993, the U.S. Supreme Court held that a prison inmate’s heavy exposure to secondhand smoke violated the Eighth Amendment ban on cruel and unusual punishment.²⁷ Involuntary hospitalization is not punishment, but suits such as this might be brought on other grounds, such as violation of patients’ civil rights.²⁸

Competence. In some states, civil commitment requires a finding that the respondent is not competent to make treatment decisions. Can persons who are not competent to make treatment decisions make good decisions about whether to smoke? Shouldn’t the hospital deal with patients’ nicotine dependence more therapeutically—and paternalistically—by providing nicotine replacement and encouraging smoking cessation? Shouldn’t the hospital also discourage patients who don’t smoke from starting?

Protecting patients. Dr. A’s hospital provides cigarettes to patients. Though compassion may be the motive, is the hospital failing to protect its incompetent patients and abetting their self-injurious behavior?

Helping smokers quit. Does the hospital offer treatment to help smokers quit? Although the problems that lead to civil commitment are immediate and serious, addressing long-term health issues is consistent with treating acute psychiatric crises. Many hospitals that permit smoking also encourage participation in smoking-cessation programs. Having these available to patients might make claims that the hospital failed in its duties to care for patients less plausible.

Related resources

• Maryland Hospital Association. Smoke-free hospital campus tool-kit. www.mdhospitals.org/mha/Community_Health_Resources/Smoke_Free_Hospital_Campuses.shtml.
• National Association of State Mental Health Program Directors. Tobacco-free living in psychiatric settings: a best-practices toolkit promoting wellness and recovery. www.nasmhpd.org/general_files/publications/NASMHPD.toolkitfinalupdated90707.pdf.