Smoke-free healthcare institutions: An achievable goal or an illusion?

The mental health sector aims to prohibit smoking within buildings, private rooms, and on institution grounds. However, how feasible is this goal? Buijsen casts a skeptical eye on the plan. 

Challenges of a comprehensive smoking ban in mental health care 

In Trouw, Buijsen explains that GGZ Eindhoven, where a smoking ban has been in effect since 2022, lost two lawsuits filed by patients who contested the overall smoking prohibition. "To justify the smoking ban, the institution referred to the Tobacco and Smoking Products Act, which actually permits smoking in private rooms or outdoors." The institution then cited a different law, the Wet verplichte GGZ. Buijsen explains in Trouw: "This law allows institutions to impose house rules, but only if they relate to order and safety, such as matters concerning meal procedures." As such, Buijsen sees limited potential for a comprehensive smoking ban in mental health institutions if they rely solely on the Tobacco and Smoking Products Act or the Compulsory Mental Healthcare Act. 

However, Buijsen identifies an alternative approach, as he explains to Trouw: "If an institution can demonstrate that a smoking ban is necessary to ensure residents' safety, which was not the approach taken by GGZ Eindhoven, the court may allow it to incorporate a smoking ban in its house rules." 

When is a smoking ban feasible? 

According to Buijsen, a smoking ban is achievable if the institution can demonstrate that the prohibition is necessary for the residents' safety. However, how can such a necessity be shown? Buijsen clarifies: "The institution might argue that smoking in the private rooms of involuntarily committed psychiatric patients, for example, poses a fire hazard. Consider the presence of bedding, curtains, and other flammable materials. Such a ban seems feasible to me." 

Buijsen also believes it would be challenging to forbid patients from smoking outdoors. "It is unlikely that smoking on an open courtyard or field at a mental health institution is as much of a fire hazard as smoking in a private room." In Trouw, he adds: "You would need to prove that smoking there is unsafe too. I do not see how a court would be convinced." 

Patients' rights: Privacy vs. smoking ban 

We asked Buijsen if conflicting rights come into play when involuntarily committed patients are prohibited from smoking outdoors on the grounds of a mental health institution. Buijsen: "Even for involuntarily committed patients, the right to privacy certainly still exists. Just because they are forcibly admitted to a mental health institution does not mean they can be entirely deprived of privacy. Further infringements on their privacy are only permissible if necessary and if the proportionality and subsidiarity of the measures are observed. The Wet verplichte GGZ only allows house rules justified by order and safety concerns. The court has previously ruled that a smoking ban extending to private rooms and outdoor areas is disproportionate." 

Buijsen explains that a competent patient could voluntarily choose to abide by smoke-free rules. However, he notes that if a competent patient does not wish to follow these rules, no consequences should be imposed. "Access to necessary care must remain fully guaranteed."