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Essay: Smoking bans

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In public health the government has a unique role, due to its responsibility and its police powers. To protect the public health and welfare, regulations, taxation and expenditure of public funds are required (Childress et al., 2002). But how far can the government go in controlling our health and when does it become to paternalistic? Would a society, as described in Zeh’s book, with a main focus on the health of its citizens but not on their liberty or right of privacy, be preferable?
In order to answer this question, a clear view on the concept ‘public health’ is necessary. Rather than concerned about the health of individuals, public health is primarily interested in the health of the entire population. In order to promote health, and prevent diseases and disability, epidemiological data, or population regulations, will be used (Childress et al., 2002). Consequently, the best entity to maintain the public health is the state, due to both its moral and legal authorities (Christoffel & Teret, 1993). However, the government’s use of its powers, also raises important ethical questions regarding justice, autonomy and the limits of governmental coercion. Therefore, when implementing regulations, interventions, taxations, or other measures to enhance the public’s health, moral requirements including respect for the individual autonomy, liberty, privacy and confidentiality need to be met (Childress et al., 2002). These requirements are described as the ‘general moral considerations’ by Childress and colleagues (2002). A cluster of concepts and norms including, values, principles, or rules relevant in public health are described. By assigning weights to these considerations policies, interventions, and actions are morally guided (Childress et al., 2002). However, in certain cases conflicts will occur between one or more moral considerations. In order to resolve these conflicts, Childress et al. (2002) designed five conditions in order to determine whether a public health action oversteps these moral values. Therefore, an intervention needs to be effective, proportional (the health benefits overweigh the limitation of the general moral considerations), the infringement of one or more considerations needs to be necessary to realize the public health goal, the infringement should be minimized and last, the public health agent should justify its actions.
When considering smoking, and SHS in particular, several ethical questions are raised. For example, what is the responsibility of the government in this matter, and what about the liberty of an individual to smoke? Nowadays, smoking bans in public areas, such as airports, working places or restaurants, are normalised in most Western countries (Monson & Arsenault, 2017). For example, the smoking ban in public areas was introduced in Belgium in December 2009, and in restaurants and cafes in July 2011 (Federale Overheidsdienst Volkgsgezondheid, 2016). The harmfulness of SHS exposure is well documented. In adults, the risk of cardiovascular or respiratory disorders such as coronary heart diseases or lung cancer increases enormously. In pregnant women, it can cause low birth weight of their baby, and in children it can cause sudden death (WHO, 2018). Thereby, a smoking ban in public areas, is easily justified due to the damage caused to others by tobacco smoke based on the harm principle of Mill (1859). With this principle, Mill (1859) states that a government can only rightfully use coercive measures, when preventing harm to others. Mill (1859) labelled this as ‘negative freedom’, whereby, a government infringes the freedom of its citizens, in order to enhance the public welfare. Legally, the fundamental human right to life of every human being defends a smoking ban in public areas as well (Williams, Schepp, McGrath & Mitchell, 2010; van der Eijk & Porter, 2015). These human rights can be both ‘positive’ and ‘negative’. For example, the state is entitled to provide and fund action contributing to good health (positive), or the right of freedom from the actions of others impairing your health (negative) (Bradley, 2010). The damage caused to non-smokers by SHS can be seen as an infringement of the negative right to life of a non-smoker (van der Eijk & Porter, 2015). Hence, the regulation of banning smoking in public areas is justified both on ethical and legal grounds. Positive effects of these legislative smoking have been well documented. A review of Monson & Arsenault (2017) identified improved cardiovascular outcomes, reduced asthma and mortality rates.
In turn, smoking in private places such as vehicles or homes, have replaced smoking in public areas as primary environment of SHS exposure (Martínez-Sánchez et al., 2014). Therefore, an increasing number of countries, have legislated, or plan to legislate banning tobacco use in vehicles while carrying children (Moore et al., 2015). At the end of 2017, a law regarding the prohibition to smoke in a vehicle when children are present, was proposed by the Belgian minister of health and welfare Joke Schauvliege (Andries, 2017). Hereby, the discussion about SHS, and in particular the exposure to children was raised again. With elevated levels of airborne nicotine and fine particle air pollution even with ventilation, the vehicle is an important environment for SHS exposure (Sendik, Fong, Travers & Hyland, 2009). Compared to unexposed children, exposed ones are at higher risk for adverse health effects due to the SHS in the vehicle (Rees & Connolly, 2006; Sly, Deverell, Kusel & Holt, 2007). Higher rates of smoking in vehicles appeared among lower socioeconomically populations compared to higher SES, this may enlarge the currently existing health-related inequalities (Sly, Deverell, Kusel & Holt, 2007; Kabir et al., 2009). Based on the harm-to-others argument and the negative right of life, a smoking ban in vehicles carrying children can be justified for the same reasons as the regulations on smoking in public areas. Due to the other-regarding behaviour towards vulnerable individuals, such as children, coercive measures can be in place (Childress et al., 2002).
But what about the remaining SHS exposure to children at home? Measures as public smoking restrictions are helpful to decrease SHS exposure but cannot eliminate it completely. Thereby, non-smokers, and mostly children, are still at risk of SHS in private places as their home (van der Eijck & Porter, 2015). A study of Zheng et al. (2017) showed that 41.3 percent of the children were still exposed to SHS in their homes after the implementation of smoking bans in public areas. Can a political intervention regulating tobacco smoking in private areas, as home, be justified in the name of the public health protection of children? The negative effects of SHS in children especially, are alarming. The passive exposure to parental smoking leads to conditions as ear infections, respiratory impairments such as asthma, and in some cases even death (Cook & Strachan, 1999). Based on the harm-to-others principle, the government could go one step further, but it would be difficult without compromising privacy (van der Eicjk & Porter, 2015). Based on the legal right of privacy and autonomy, regulations as banning smoking in private areas, could receive civil commotion (Mechanic, Rogut, Colby & Knickman, 2005). The right to privacy and autonomy are described as the right of no interference with privacy, family, or at home, and the right to freely act without the influence of a controlling agent (United nations, 1948; United Nations 1976; Jarvie & Malone, 2008). When discussing a topic such as smoking, the addiction can be seen as a controlling agent, and therefore the choice is nog truly autonomous (Jarvie & Malone, 2008). Legally, parents also have the right to raise their child without interference of the government, except when there is a real risk of harm (Jarvie & Malone, 2008). Therefore, all rights mentioned above can be overruled in order to protect health and well-being of the child, for example when protecting individuals from physical or sexual abuse, or in the legalisation for mandatory child seats and seatbelts. Furthermore, the restriction of smoking which infringe the adult autonomy, would only be intermittent, when the children are not around the restriction would be abolished. On this basis, the beneficence of the children’s health would dominate the adult autonomy (Jarvie & Malone, 2008). Ethics suggest that parents have both the legal and moral responsibility to always take the child’s best interest at heart (Jonsen, Siegler & Winslade, 2002). Choosing to smoke in the presence of children, can be reasonably seen as not acting in the children’s best interest based on basic human rights to life and health, and the right to a clean and safe environment (United Nations, 1990). When exposing the child to SHS, a parent would fail to prevent the child from the given risk (Daschille & Callahan, 2005). However, a lack of educational or economic resources, or psychosocial issues may challenge to define smoking in the presence of as maleficent. Perhaps some adults expose their child to SHS without understanding the risks, control, or the full intention to hurt their child. In this case the adult may need help from society. This is labelled as ‘positive freedom’ by Mill (1859). Hereby, the state helps its citizens to make healthier choices by providing education, or skills for example (Mill, 1859). Interventions helping to tackle the addiction, via regulation, education, or incentive programs, may help the individual to recovering his authentic autonomy.
However, forcing individuals to accept treatment, would not be justifiable in this case, and decrease the autonomy even more. Tobacco use stays both an autonomous and a private action (Smith, 2007). Regarding Mill’s harm principle (1859) a government can only conduct the society when an issue concerns other, otherwise it is called paternalism. Paternalism can be described as actions where the authorities make decisions or act for its citizens in their best interests or for the public’s welfare, mainly without their consent (Suber, 1999). Paternalism is divided in two categories: ‘soft paternalism’ and ‘hard paternalism’. When intervening in someone decision, who is perceived as deprived from proper decision making, the term soft paternalism is used. People who are not properly informed, children, or individuals who are pressured are hereby labelled as lacked from decision making. Hard paternalism is used when intervening in or overriding one’s decision of smoking, when they have no intention in quitting or not smoking (Childress et al., 2002). Some adults, who are well informed, may still choose to smoke, whether to supress weight gain, to alleviate stress or for pleasure (Thomas & Gostin, 2013). Thereby, a conflict with one’s right of autonomy and private is induced (Childress et al., 2002). The human right to self-determination is determined as the right to freely contribute to social, cultural and economic development. Together with the right to liberty, it is usually translated into the ‘right to smoke’ by several smokers (United Nations, 1948; United Nations, 1976; van der Eijck & Porter, 2015). But due to the harmfulness to oneself and others and the costs related to tobacco-induced diseases, the ‘cultural or social development’ argument is difficult to maintain (van der Eijck & Porter, 2015). Another argument frequently used in this matter is the ‘right to privacy’ (United Nations, 1948; Childress et al., 2002). When restricting smoking completely, as in Zeh’s book, the infringement of the privacy and autonomy, in order to enhance one’s health, would be too intrusive. Besides, it is important to reflect on the risk of stigmatisation. Adults, mostly from lower socioeconomic status, often smoke in order to cope with stress (McKee et al., 2011). When using strategies to denormalise the use of tobacco, further stigmatisation and isolation of smokers will be provided (Thomas & Gostin, 2013). Knowing the harmful effects of stigmatisation, such as threatening the dignity and shaming smokers, a total ban on smoking seems to be disapproval (Thomas & Gostin, 2013; Ashcroft & Dawson, 2011). There is of course a duty of the government to make sure that make the choice to smoke, are adequately informed about its consequences, since smoking is addictive, but a complete ban would be hard to justify (Ashcroft & Dawson, 2011). Therefore, the regulation of banning smoking while children are present needs to be addressed, as different from forcing adult to quit smoking (Jarvie & Malone, 2008).
3. Technical Boundaries
The most raised question when imagining smoking bans in private areas, such as vehicles and homes, is how the government can control this regulation? Both legal and technical boundaries rise when evaluating this question. Which legal but mostly technical measures will be needed to make sure everyone conducts to this law, and which measures would overrule the human rights?
When controlling smoking in vehicles, the same measurements as the regulations on phone use while driving can be used. The police will check vehicles carrying children and adolescents, while suspecting an adult is smoking. In case one is smoking with children present, a fine will be claimed. Thereby, the compliance to a smoking ban in vehicles, can be controlled. One might argue that this is time-consuming and therefore not cost-effective. However, when knowing that the Netherlands payed 2.8 milliard euros to smoking-related diseases in 2010 and understanding all the health consequences related to SHS, this measure seems as a small price to pay in order to improve the public’s health (Volksgezondheid en Zorg, 2018).
When talking about regulating in smoking at homes, and thereby ensure children are exposed to SHS anymore, appears to be more difficult to implement. How should the government control this law? Should every house be provided with a controlling device that detects tobacco smoke? And what about that when the children are not home? Should children be tested by health care workers with biomarkers who provide data on second-hand cigarette smoke exposure? These biomarkers can only be detected by serum, urine, hair and toenails (Hsieh et al., 2011). Should a government require every parent to deliver these samples, such as in Zeh’s book? When using technical measures as this, several ethical and legal rights will be compromised. First of all, the right of privacy of the children will be compromised. But mainly the right of the physical and mental integrity of a person will obstruct a measure as that (European Union Agency for Fundamental Rights, 2018). Thereby, the law states that a person can choose freely what can happen with their body, which medical procedures take place and which medicines are taken (Nederlandse Grondwet, 2008).
4. Conclusion
Although homes continue to be a significant source of SHS exposure, no governments are planning to legislate a smoking ban in the home environment. Not even while children are present (Freeman, Chapman & Storey, 2008). While restricting tobacco use in vehicles when carrying children seems to be justified easily, the infringement of privacy and autonomy when inducing regulations in the home environment and devices to control it, is perceived unproportioned to the health benefits in smoking and non-smoking adults. These adults perceive their homes as a “castle” where private freedoms, who are for instance prohibited in public, are allowed (Freeman, Chapman & Storey, 2008). In other words, as long as tobacco products, such as cigarettes, are freely available for adults, and therefore the contact with SHS remains possible, eliminating SHS exposure to children is almost impossible, even with the strictest laws (van der Eijck & Porter, 2015).
As Mia said: ‘The state is there to serve humanity’s natural desire for life and happiness. Powers is legitimate only in so far as it serves this goal. The state must unite the well-being of the individual and the whole.’ (Zeh, 2014). When introducing tobacco smoke detecting devices in homes or mandatory health checks, as in ‘The Method’ (2014), a conflict between individual and collective values will occur. Also, as long as no other, less infringing technical devices such as described above, are developed, banning smoking in homes will be extremely difficult. And let’s be honest, as much as we as health practitioners are in favour for regulations which protects the health of vulnerable individuals, measures as described above are also for me a step to far.
Thereby, it is more convenient to use all data about SHS exposure to convince policy makers and health advocates to promote protective strategies, such as personal health behavioural interventions which not require quitting smoking, health communication campaigns, smoking-cessation interventions, and legalisations without infringing the privacy of its citizens. For example, regulations prohibiting smoking in vehicles carrying children, in combination with the already existing smoking bans in public areas. This showed to help reduce SHS and promote overall smoke-free norms (Rees & Connolly, 2006; Kruger et al., 2016). Research showed that the introducing of the public smoking ban, helped to promote voluntary smoke-free rules in vehicles (Murphy-Hoefer, Madden, Maines & Coles, 2014). Thereby, the same effect can be hoped when introducing smoke-free vehicles carrying children on promoting voluntary smoke-free homes, without infringing the privacy and autonomous choices of the citizens.

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