Posted on: May 30, 2016

The Court of Appeal has upheld the legality of a total ban on smoking on Waitemata District Health Board (WDHB) premises. The Smoke-free Policy, in place since 2009, prohibits smoking inside and on the grounds of all WDHB sites, including its mental health units. Patients and employees who cannot leave the premises are therefore unable to smoke.

The Smoke-free Policy was said by the appellant to be particularly harsh on detained psychiatric patients because of the highly ingrained culture of smoking within the mental health sector. At the same time, it is recognised that smoking is the biggest contributor to chronic disease and death for all patients.

Mr B, a former WDHB psychiatric patient, challenged WDHB’s Smoke-free Policy by way of judicial review. Two broad bases were advanced: that the Policy was unlawful because it was beyond the powers of the WDHB, and that the Policy breached rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA). The challenge was unsuccessful in the High Court. The appeal to the Court of Appeal also failed.

The Court of Appeal observed that the objectives of all District Health Boards, broadly speaking, relate to the improvement, promotion and protection of health, and include the need to uphold ethical and quality standards. How the WDHB accomplishes these objectives is, by and large, a matter of clinical and professional judgment and accordingly the Court afforded considerable weight to the views of professionals.

The evidence satisfied the Court of Appeal that allowing smoking on District Health Board premises runs contrary to the fundamental obligations of healthcare providers. The Smoke-free Policy is crucial to promoting smoking cessation, particularly in mental health settings, and in line with international best practice. In implementing the Policy, the safety and well-being of psychiatric patients was a key consideration of the WDHB.

Widespread consultation with health consumers occurred during the Smoke-free Policy’s ten-year gestation. Compliance with smoke-free legislation was also important. The Court of Appeal thus found that the implementation of the Smoke- free Policy was within the statutory powers of a District Health Board charged with promoting the health and well-being of its patients and staff.

Addressing the impact of the Smoke-free Policy on detained psychiatric patients specifically, the Court of Appeal found that the Smoke-free Policy did not breach any of the rights or freedoms affirmed in the NZBORA. The Smoke-free Policy does not amount to disproportionately severe treatment. The Court noted that while nicotine replacement therapy is not a panacea, it is a humane and meaningful alternative. Nor does the Policy deny detained patients the right to be treated with humanity and with respect for their inherent dignity. Such a right does not include concepts of autonomy or freedom to do as one pleases, and certainly does not include a freedom or right to smoke. Rather, it ensures that people who are deprived of liberty are treated “as befits a human being with compassion”. Through its provision of non-smoking alternative therapies, the Smoke-free Policy was found to do just that.

The Smoke-free Policy was also found not to discriminate against psychiatric patients who are detained. The Court of Appeal regarded the Smoke-free Policy as a neutral rule, directed at the phenomenon of smoking, applying to all people on WDHB premises. Detained psychiatric patients are therefore treated no differently to all staff and patients who, for whatever reason, cannot leave WDHB grounds. Finally, the Court of Appeal determined that, in any case, the Smoke-free Policy is a demonstrably justified limitation under the NZBORA. The Policy is proportionate and rationally connected to the important objectives of protecting those on WDHB grounds from second-hand smoke and encouraging patients and staff not to smoke, and necessary to achieve that aim.

The Smoke-free Policy was therefore found by the Court of Appeal to be a reasonable and lawful response to the pressing need to reduce both the incidence of smoking, particularly in the mental health sector, and exposure to second-hand smoke. Accordingly, the appeal was dismissed.

See B v Waitemata District Health Board [2016] NZCA 184

Source: Media Release 11 May 2016, Courts of New Zealand



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