THE Scottish Executive is to introduce a new set of national guidelines to protect workers who visit people in their homes from the risk of passive smoking.

The move follows the decision to protect bar and restaurant workers from the harmful effects of second-hand smoke, with a ban on smoking in public places due to become law next year.

However, the Executive has stopped short of extending the law to cover domiciliary workers, such as social workers, home helps, care workers, community nurses and midwives, because it would have implications for the human rights of the people they tend to.

The health minister, Andy Kerr, told the Sunday Herald: "We will shortly be issuing guidelines to the NHS, local authorities and care-service providers on the development of smoke-free polices for staff in light of the introduction of the legislation.

"It will include advice on domiciliary visits and outline a number of actions which can be taken to prevent or minimise staff exposure to secondhand smoke in these circumstances."

However, the minister was unable to clarify what the guidelines would be, or give a date as to when they would be released.

The Smoking, Health and Social Care (Scotland) Act 2005 extends to "wholly or substantially enclosed" public places, including workplaces and even work vehicles which more than one person uses. However, some domiciliary workers may regard their workplace as being their clients' home.

A Sunday Herald investigation revealed local councils across Scotland currently implement a disparate range of smoking policies and procedures.

Scottish Borders, East Dunbartonshire and Argyll and Bute councils said that, as a last resort, their workers would be withdrawn from a client if he or she refused to stop smoking when an employee visited the client at home, and no alternative staffing could be arranged.

In South Ayrshire, services are not taken away, but employees can be given a face mask instead.

West Lothian workers ask clients not to smoke while care workers are in the home, with most people agreeing. However, a spokesman added: "If a client refuses and is at risk without the service, we ventilate the room, mainly by opening a window."

Concern is growing among healthcare unions about the risks to domiciliary workers. The Royal College of Nursing in Scotland is currently developing their own guidance to help nurses raise the issue of smoking with patients when they make home visits.

Jane McCready, chairwoman of the RCN Scotland board, said: "Passive smoking damages health, but we know that many nurses feel uncomfortable about asking a patient to stop smoking in their own home in case it appears judgemental.

"However, we believe that the health of the staff, the patients whose home they are entering and other members of their household, especially children, must be considered. There is also evidence that when patients are asked not to smoke before staff attend most are happy to oblige."

A pilot scheme in Liverpool, where patients being treated at home were asked not to smoke one hour before the nurse arrived and during the visit, has achieved a 95-per cent success rate.

Scotland's forthcoming smoking ban is an attempt at tackling the country's appalling health record.

Research has shown nearly 13,000 Scots die every year from the effects of smoking, and around 1000 of these deaths could be attributed to passive smoking. In the past 50 years, 680,000 people in this country have died as result of smoking.

The British Medical Association in Scotland said health workers should be able to ask patients not to smoke when they make their visits.

Dr Charles Saunders, chairman of the BMA's Scottish Public Health Committee, said: "While the legislation to ban smoking in enclosed public places will protect staff and non-smokers from the harmful effects of second-hand smoke, people will still have the right to smoke in their own homes.

"It is entirely reasonable for individual health workers to ask their patients not to smoke while they are visiting them at home. It is no different to workers who are allergic to cats or dogs asking their patients not to have them in the house during a visit."

A spokesperson for campaign group Ash Scotland said that all workers deserved protection from second-hand smoke and advised that individuals receiving care in the home refrain from lighting up during visits.

"Ash Scotland believes that people receiving care visits should not smoke whilst a health visitor is in their house. Whilst this position isn't in the Smoking Act, many local authorities, health boards and charities are looking at introducing such a rule into their own regulations as developing best practice."

Other organisations have played down the issue, however.

Ruth Stark, professional officer for the British Association of Social Workers Scotland, said it was an "occupational hazard".

"We're often visiting people who are stressed. When you are visiting people in their home you have to respect them. It would be very difficult thing to ask. They may, quite rightly, say, 'Go away.' "I can't see that it could be enforced and would actually help us do our job. We have to start with who people are, rather than who we want them to be."

Cameron Fyfe, a partner at Ross Harper Solicitors in Glasgow, specialises in litigation and human rights. He said that domiciliary workers were not covered by the new anti-smoking legislation because there is a human rights conflict.

He said: "My own view is that employers have a duty of care, they can't therefore insist that the employee works in those conditions and if they did they'd be open to a claim for damages, and a claim of constructive dismissal where you leave your job because of the attitude of your employer.

"If anyone did bring a test case, they'd have to argue that the workplace, in these circumstances, was someone's home. You have a problem there because the person whose home it is can argue their human rights and say they have a right to do what they want in their own homes. You're going to get a conflict of human rights."

THE proposal to make Scotland the first country in the UK to introduce a ban on smoking in public places was delivered through a bill presented last year to the Scottish parliament by shadow deputy minister for health, Stewart Maxwell.

A public consultation on the issue resulted in more than 27,000 responses, 20 times more than for any other consultation held by the Scottish Executive.

In July this year, MSPs voted 83 to 15 to approve the ban, with only the Conservatives opposing the proposal.

Maxwell admitted the law has presented a "grey area". He said: "One of the great benefits was that workplaces wouldn't be exempt.

"Those who are getting help and want help in their homes should respect the person who is trying to give them that help. I don't think it is impinging on their rights, I think it's a reasonable thing to ask."

COUNCILS' POLICIES

EAST DUNBARTONSHIRE "Customers who smoke are asked to refrain from smoking whilst carers are in their home and the member of staff can refuse to visit a home."

MIDLOTHIAN "[We take] reasonable steps to protect employees' health such as encouraging the client to open a window, being sympathetic to employee's requests for a transfer . . ."

SOUTH AYRSHIRE "In the unlikely event of a service user who steadfastly refuses not to smoke . . . we would provide the appropriate face mask."

FIFE "Clients should already have been advised by information pack that smoking is not permitted in the same room as the care worker for the time they are there."

HIGHLAND "Employees will have annual risk assessments to monitor the situation and health checks will be available."

NORTH AYRSHIRE "Our draft no-smoking policy is still at the consultation stage."

EDINBURGH "Our home care department and social care department already request clients not to smoke."

EAST AYRSHIRE "The Council is making new arrangements to accommodate service users who smoke."

NEED TO KNOW

THE FACTS Employees such as social workers, nurses and healthcare staff who have to work in their clients' homes will receive new guidance on smoking policies in the run up to the smoking ban. The new Executive guidelines will give policy advice to the NHS, local councils and care-service providers.

BACKGROUND Enclosed public spaces, such as health centres, shopping centres, hotels, airport terminals and work places, will become smoke-free at 6am on March 26, 2006. Employers failing to enforce the laws will face fines up to pounds-2500. Anyone caught smoking will be penalised up to pounds-1000.

NEED TO KNOW MORE?

www. clearingthe airscotland. com Gives details of the smoking ban www. ashscotland. org. uk Antismoking group