This question comes from a NSW Paramedic.
NSW Ambulance have policy directives in regards to smoking on ambulance stations, NSW Health buildings, NSW Ambulance vehicles for example within 20 metres of ambulance vehicles. I have always requested, sometimes demanded that patients, patient family and friends or bystanders not smoke whilst I am assessing and treating patient. Even in patient’s homes. I always state that I am entitled to work in a smoke-free environment. My question is, however, is it actually lawful to request that they (patients, bystanders etc) refrain or cease smoking when I’m assessing/treating patients?
The easy answer is that of course it’s lawful to request that people cease smoking, you don’t need any lawful authority to make the request and if they comply all well and good. The real question is can you compel them to stop smoking and that is a more complex question. We can consider different scenarios where the answer is more, or less, clear.
The obvious example we could not only request but insist that person stop smoking is when you are treating a patient in the presence of hazardous, flammable material such as fuel. If I imagine you are a car accident and there is leaking fuel there is also likely to be, in attendance, police and fire brigade. At a Hazardous Materials incident the officer in charge of Fire and Rescue NSW as various powers including the power to order a person to leave the area (Fire Brigades Act 1989 (NSW) ss 13 and 19). Equally, police have power to direct a person to leave a danger area in order to protect them or others from “injury or death” (State Emergency and Rescue Management Act 1989 (NSW) s 60L) Clearly of a person was smoking and refused to request stop the appropriate response would be to ask the Fire Brigade or police to take appropriate action.
There may be examples where smoking is causing a hazard but police or fire brigade are not in attendance. The obvious example would be where paramedics are using oxygen to treat a person and a bystander assists on smoking. Let us assume, for the sake of the argument, that this is in the patient’s home. Certainly the danger should be made clear to the smoker for lawful authority there is to take any action is unclear.
A person who is at someone else’s place of work has an obligation to take reasonable care for their own and others’ safety (Work Health and Safety Act 2011 (NSW) s 29) but they are unlikely to recognise that they are a place of work or are bound by that particular Act in their own home. It is unlikely that SafeWork NSW (the agency that since 1 September 2015 has replaced WorkCover as the health and safety regulator in New South Wales) would be interested in investigating and prosecuting a person in the circumstances. Even if they were it is not much help at the time.
The Smoke-Free Environment Act 2000 (NSW) seeks to ‘to promote public health by reducing exposure to tobacco and other smoke in certain public places’ (s 3) and so will have no application in a private home.
It is an offence to obstruct or hinder an ambulance officer who was attempting to treat a person (Health Services Act 1997 (NSW) s 67J). However that offence requires that the obstruction or hindrance is ‘intentional’. A person who is smoking while a paramedic is treating their friend or relative is probably not intending to obstruct or hinder the officer and it would be difficult to argue that by smoking the officer was so obstructed or hindered. The case may be clearer where a paramedic has to compromise their treatment e.g. by turning off oxygen. In that case it would be relatively easy to see the paramedic was obstructed or hindered in the performance of their duties. Whether that was intentional would depend on the facts but if the smoker had been told that they had to stop smoking or move away, or the paramedic would not be able to treat their friend and if they refused than that might go some way to proving the essential elements of that offence. Prosecution for that offence at some later time will not however help at the time the treatment is being administered.
If the person wants to smoke inside the ambulance and there is clear ability to ask them to stop or to leave the vehicle. For example if a patient’s relative was to travel with them to hospital and wants a cigarette to ‘calm their nerves’ then the paramedic is entitled to refuse permission. The person is in the ambulance only with the license or permission of the paramedic and that licence can be revoked if they refused to comply with the conditions imposed by the paramedic and the ambulance service. In short you can say ‘you can’t smoking here and if you insist I’ll pull over and you have to get out’.
If the paramedic were in Victoria that he or she could, if time permitted, seek police assistance. In that state ‘a police officer is authorised to remove any person who interferes or may interfere, by his or her presence or otherwise, with the provision of care or treatment’ by operational ambulance officer (Ambulance Services Act 1986 (Vic) s 39 AB). In the Australian Capital Territory the chief officer of ACT Ambulance may ‘give directions to regulate or prohibit the movement of people, animals or vehicles; or evacuate people or animals from an area to another place’ (Emergencies Act 2004 (ACT) s 34(k) and (l)). If that power has been delegated to individual offices (s 39) then they too could give those directions but there does not appear to be any specific legal consequences if a person fails to comply with that direction. In Tasmania it is an offence to impede a paramedic in the performance of his or her duties (Ambulance Service Act 1982 (Tas) s 39B(1)). Unlike New South Wales this offence does not require proof of an intention to impede. It is also an offence in Tasmania to fail to comply with a lawful requirement or direction given by paramedic (s 39B(3)).
A paramedic that is concerned about smoking by bystanders is entitled to ask them to stop. Where there is a risk they should attempt to explain that risk and if necessary it may mean they have to compromise their treatment e.g. by turning off oxygen equipment. While there are some legal obligations on the bystanders enforcing them is likely to be impossible and ineffective. It is unlikely that any use of force to stop a person smoking, in the interest in ensuring a smoke-free workplace, could be justified.
Where the smoking is creating an actual danger of fire or explosion a paramedic should seek assistance from police or the Fire Brigade.
I have worked as Security in a large NSW Hospital. Smoking is a real problem. We are constantly told to enforce the No Smoking policy and regulations. I always ask nicely first and I find most people comply. However a few become abusive and aggressive and continue to smoke. I have had smoke blown in my face and been pushed around by these offenders.
besides the obvious assaults above, the questions are;
Is it lawful to “ban” a visitor who refuses to stop smoking and indeed constantly reoffends?
Can the powers in the NSW INCLOSED LANDS PROTECTION ACT 1901 be used to remove such offenders?
What powers are available to make Patients comply who refuse to stop smoking?
Can we remove the smokes and lighters from their room?
Can we “ban” visitors who supply cigarettes to a patient?
Who enforces the Smoke-Free Environment Act 2000 (NSW) and what powers does Hospital Security have in the Act to make prosecutions?
Or how do we get the proper authority to take action under this Act?
Public hospitals always have trouble banning anyone particularly anyone who requires treatment. Even if a person brought a gun onto the hospital premises they would not be ‘banned’. If they were shot by police that would still be treated in the public hospital. Having said that, there is nothing in the Health Services Act 1997 (NSW) that specifically says public hospitals must be open to all times but it is something inherent in the nature of public hospitals that they are open to the public.
The Inclosed Lands Protection Act 1901 (NSW) provides various rights and remedies with respect to inclosed lands, which includes a public hospital (s 3). A person commits an offence if they fail to leave inclosed lands when directed to do so by a person apparently in charge of that land (s 4) and in the circumstances I think that would extend to a security guard clearly employed for the purposes of securing the land. The maximum penalty is 10 penalty units or $1100. There is nothing in this Act that authorises the use of force and a person only be arrested if they refuse to provide personal particulars (s 6), otherwise a breach of this Act is to be commenced by Court attendance notice rather than arrest. It is however lawful use reasonable force to bring to an end a “criminal trespass” (Crimes Act 1901 (NSW) s 418) and a person who refuses to leave having been directed to do so is then committing a “criminal trespass” (Giddings v Director of Public Prosecutions  NSWSC 169). How much force would be reasonable to reject person whose offence was to smoke contrary to the anti-smoking policy could be a debatable question.
As noted earlier the Smoke-free Environment Act 2000 (NSW) deals are smoking in public places. A “public place” is ‘a place or vehicle that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise)’. Areas of a public hospital that are open to the public which presumably would include access to the A&E would be a ‘public place’. A ‘smoke-free area’ includes ‘a place at a public hospital, health institution or health service under the Health Services Act 1997 that is designated as a smoke-free area by a by-law or regulation under that Act and notified by signs displayed in, or at an entrance to, any such area’ (s 6A). I will assume that the hospital where my correspondent works meets those criteria. It is a criminal offence to smoke within a smoke-free area, the maximum penalty is five penalty units or $550 (s 7) this act is enforced by the director-general of health or a person listed in the regulations. The Smoke-free Environment Regulation 2007 (NSW) provides that the act may be enforced by the Chief Executive of a public hospital and by the police (r 8). This act is enforced by way of penalty notice does not give rise to a power to use force or to arrest. Fundamentally then the power of security have to enforce the act would depend on the arrangements with the Chief Executive Officer of the hospital. If the security guard were appointed as an ‘inspector’ (Smoke-free Environment Act 2000 (NSW) s 14) then he or she would have the power to issue an infringement notice (s 20A). Otherwise the security guard would need to take personal particulars report them to the Chief Executive Officer who can make a decision to commence proceedings.
I can see no basis for a power to remove cigarettes or lighters from the patient’s room unless they are actually using them. If that items were taken they would have to be placed with the patient’s property to be returned upon their departure. As the occupier of the hospital, the hospital could ban anyone (subject what I said above about the difficulty of banning people who actually need treatment) including a person who supplies cigarettes and a lighter to a patient. Enforcing that would be difficult and politically unpopular.
I was asked:
1. Is it lawful to “ban” a visitor who refuses to stop smoking and indeed constantly reoffends?
2. Can the powers in the NSW INCLOSED LANDS PROTECTION ACT 1901 be used to remove such offenders?
3. What powers are available to make Patients comply who refuse to stop smoking?
4. Can we remove the smokes and lighters from their room?
5. Can we “ban” visitors who supply cigarettes to a patient?
6. Who enforces the Smoke-Free Environment Act 2000 (NSW) and what powers does Hospital Security have in the Act to make prosecutions?
7. Or how do we get the proper authority to take action under this Act?
My answers are:
1. An occupier can ban a person entering their property but that is really impracticable in the context of a public hospital.
2. The Inclosed Lands Protection Act 1901 does apply to a public hospital but the powers in that act are limited. It creates an offence if a person fails to leave when directed to do so I could use reasonable force to object to trespassing but of the trespassers only offence is smoking, particularly at the outside, contrary to a no smoking policy how much force is “reasonable” would be debatable.
3. There are no specific powers to enforce compliance. The legislature has provided the compliance with the Smoke-free Environment Act 2000 is by way of criminal penalty rather than direct action.
4. I’m not aware of any specific power that would allow you to remove the smokes and lighters from the patient’s room however has to be a common-law power to do so if they are using them in circumstances that is exposing others to risk both from secondhand smoke and a risk to the hospital given the high risk environment. The mere fact that they are in the room with their personal effects could not justify seizing those items.
5. See (1) above.
6. The Director- General of Health, an inspector appointed under section 14, the Chief Executive Officer of a public hospital and the police.
7. You would need to take that up with the Chief Executive Officer of your hospital and ask him or her to determine a policy on how the act should be enforced or seek appointment as an inspector.