Keeping the right side of Mill

Posted on Wednesday 12th March 2014

Paul Snelling, Senior Lecturer at the University of Worcester

cigaretteQuestions of smoking regulations are currently in the news offering an opportunity to revisit Mill’s famous dictum which, to paraphrase, allows restrictions on personal liberty only in order to prevent harm to others. ‘His own good, either physical or moral is not sufficient warrant.’ It would be easy to suppose that a line can be drawn between these categories, enabling contemporary Millians to claim that self-harming behaviour should be outside state control, whereas the regulation of other-harming behaviour properly lies within it. However, other-regarding harms come in multiple forms presenting complex analytical challenges.

Harms may be direct as when caused by second hand smoking, emphasised for example as justification for the ban in the Health Select Committee report. But there are also wider harms to consider, easy to articulate but difficult to quantify. Even in an otherwise empty car smokers may harm others by becoming distracted, and less tangible harms to others are caused through harm to self. For example, a child deprived of his father by premature death, a scenario utilised in the scared and worried campaign. The boy in the campaign video is not worried about unanswered texts, aggressive dogs, or the lack of facebook friends; but he is worried ‘about Dad smoking. I’m worried that my Dad will die.’ The message is clear; the wrongness of smoking lies in the harm to the child.

However difficult it is to draw the line between self and other regarding harm, it retains a powerful normative and analytical force and is worth revisiting. It is especially relevant in two recent extensions in the escalating regulation of smoking. A ban on smoking in cars with children, enabled in parliament recently, can be justified by preventing harm to children. The BMA proposed a blanket ban of smoking in vehicles, regardless of who is present. Their proposal to extend the ban to all vehicles at all times offered claims about residual toxins but it was reinforced by the observation that second hand smoke is harmful to smokers and non-smokers, and the implication was that smokers should be restricted from smoking for their own good.

The second example is recently issued NICE guidance on Smoking cessation - acute, maternity and mental health services , which recommends ‘Ensuring there are no designated smoking areas, no exceptions for particular groups, and no staff-supervised or staff-facilitated smoking breaks for people using secondary care services.’ The document discusses benefits of smoking cessation and despite claims that the health of visitors to the units will benefit, it’s smokers’ health that they are seeking to improve using ‘strong leadership and management’ to ensure ‘compliance’. Elsewhere, smoking policies in psychiatric units which allowed smoking in the open have been replaced by total bans, justified (in New South Wales) in these terms : ‘The total ban on smoking in all parts of NSW Health facilities, including open areas, is justified on the ground that preventing people smoking has long-term health benefits to the whole population.’ Despite the double-speak offered in justification, the Australian position and the one aimed at by NICE are clearly on the self harming side.

Regulating in search of self and other regarding benefits is known as mixed paternalism, and clearly comes in degrees. Sadly I have heard very few voices against the NICE proposal, but gladly, fewer still against the proposed ban on smoking in cars. Media and popular discussions about the proposals can conflate these issues because they can both be regarded as ‘anti smoking’, but despite challenges, I urge separation as far as possible. The line is of fundamental importance, and not just to liberals, but it is in grave danger of first becoming blurred and then being swept aside.

Paul Snelling is Senior Lecturer in Adult Nursing at the University of Worcester. He has an interest in the ethics of health care, and is nearing completion of a PhD in bioethics a the University of Manchester.