B v Waitemata District Health Board

• Jurisdiction: New Zealand
• Judge: Stevens J
• Judgment Date: 11 May 2016
• Neutral Citation: [2016] NZCA 184
• Docket Number: CA524/2013
• Court: Court of Appeal
• Date: 11 May 2016

BETWEEN

B

Appellant

and

Waitemata District Health Board

Respondent

[2016] NZCA 184

court

Stevens, Cooper and KÓS JJ

CA524/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a High Court decision that the respondent's Smoke-free Policy was not unlawful — the appellant had claimed that it was inconsistent with controlling legislation and that it breached his rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”) — respondent implemented its Smokefree Environment Policy in its hospitals and other premises — the appellant had been a psychiatric patient in a secure unit and was effectively forced not to smoke — whether the Policy was lawful — whether the respondent had exercised its powers in a manner consistent with its obligations under the New Zealand PublicHealth and Disability Act 2000 — whether the appellant had a legitimate expectation, including a right to be consulted, to smoke in the psychiatric units under s6 Smoke-free Environments Act 1990 (dedicated smoking rooms in hospital care institutions) — whether the appellant's rights were breached under s9 NZBORA (right not to be subjected to torture or cruel treatment), s19 NZBORA (freedom from discrimination), s23(5) NZBORA (rights of persons arrested ordetained) — if any of the appellants rights were infringed, whether it was a justified limitation under s5 NZBORA (justified limitations).

Counsel:

R K Francois, for Appealent

J P Coates and P W Le Cren for Respondent

P J Gunn and A L Dixon for Attorney-General as Intervener

• A The appeal is dismissed.

• B There is no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

	Para No
Introduction	[1]
Background	[5]
The appellant	[5]
WDHB mental health units	[7]
Development of the Smoke-free Policy	[9]
The Smoke-free Policy	[13]
High Court judgment	[14]
Judicial review	[14]
Breach of rights	[19]
Issues on appeal	[22]
Ground one — lawfulness of the WDHB's actions	[23]
Crown Entities Act — ulterior purpose	[23]
Powers and objectives of DHBs	[26]
Ground two — relevant considerations	[42]
Ground three — legitimate expectation and consultation	[46]
Legitimate expectation	[46]
Consultation	[56]
Summary of conclusions on judicial review	[58]
Ground four — s 9 NZBORA	[61]
Ground five — s 23(5) of NZBORA	[68]
Inhumane treatment	[70]
Whether dignity includes the right to smoke	[73]
Ground six — discrimination under s 19(1)	[81]
The rule said to discriminate	[81]
The test for discrimination	[84]
The comparator group	[87]
Different treatment on a prohibited ground of discrimination?	[90]
Conclusions on s 19(1)	[97]
Ground seven — s 28 — interference with private life	[100]
Ground eight — a justified limitation?	[108]
Result	[113]

Introduction

1 When the Rt Hon Helen Clark introduced the Smoke-Free Environments Bill into Parliament in May 1990, she spoke of the Bill being “one of the major planks in a strategy aimed at achieving a smoke-free generation in New Zealand “. 1 Nearly two decades later in November 2009 the Waitemata District Health Board (WDHB), following extensive consultation, fully implemented its Smokefree Environment Policy (the Smoke-free Policy). As a result, no smoking is permitted inside any

buildings, vehicles or offices owned or leased by the WDHB. In addition, no staff, patients or visitors may smoke in external areas on any WDHB site. Anyone wanting to smoke must leave the grounds. Importantly the Smoke-free Policy provides that WDHB staff will assess patients on arrival and be proactive in offering them support to quit smoking. Smokers are prescribed nicotine replacement products and are referred to a smoking cessation service

2 The impact of the Smoke-free Policy is said to be challenging for psychiatric patients who are compelled to be in secure units from which they may not leave and who are therefore effectively forced not to smoke. The appellant, Mr B, was such a patient some time ago. Patients in general wards who, because of physical or medical constraints, are not able to leave the grounds to smoke outside the perimeter are similarly affected.

3 Mr B, along with two others, challenged the Smoke-free Policy in the High Court. 2 Two broad grounds were advanced. The first involved judicial review whereby the Smoke-free Policy was said to be unlawful because it was inconsistent with the WDHB controlling legislation. The second was a claim that the policy breached the applicants' rights under the New Zealand Bill of Rights Act 1990 (NZBORA). The challenge was rejected by Asher J on both grounds. 3 Only Mr B appeals.

4 Mr B seeks to advance his appeal essentially on behalf of himself and others who suffer from mental illness, ticularly patients who have the need for formal admission to the Intensive Care Units (ICUs) operated by the WDHB. The appeal is also brought ostensibly in the interests of other non-psychiatric patients who are bedridden and hence unable to leave the hospital buildings and grounds to smoke. The High Court conclusions are challenged on multiple grounds. 4

Background

The appellant

5 Mr B is 36 years old. He has a psychotic disorder, with a primary diagnosis of anoid schizophrenia. He also suffers from diabetes and a traumatic brain injury resulting from a motor vehicle accident. His involvement with the WDHB mental health services occurred within a nine-month period from June 2012 to February 2013 when he was subject to a compulsory inpatient treatment order and then a community treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act). As an inpatient Mr B mainly lived in an open ward, but on three occasions, amounting to some 12 days in total, he was placed in the ICU from which he could not leave. 5 The ICU is a segregated, low-stimulus environment.

6 Mr B's time as an inpatient postdates the implementation of the WDHB's Smoke-free Policy. He is a long-time smoker and reports smoking around 15 cigarettes per day. He says he enjoys smoking because it is calming and helps him feel relaxed. Mr B contends the effect of the Smoke-free Policy forcing him to stop smoking is that he gets very uptight and feels as though a t of his freedom is taken away from him.

WDHB mental health units

7 The WDHB's adult mental health services comprise two acute units: Waiatarau and Taharoto. 6 These units provide inpatient mental health treatment to both voluntary/informal psychiatric patients and compulsory psychiatric patients who are subject to an order under the MHCAT Act. The Waiatarau Acute Admissions Unit is located at Waitakere Hospital in West Auckland. It went smoke-free in September 2009 and has 32 beds, eight of which are in the ICU. 7

Patients in the open wards are permitted (if their clinical condition allows) to walk off of the WDHB site to smoke, whereas those in the ICU cannot. The Taharoto Acute Admissions Unit is located at North Shore Hospital in Takapuna. It went smoke-free in August 2009. Taharoto has 39 beds, nine of which are ICU beds. 8 Patients in the open ward may be allowed by their clinicians to leave the premises to smoke, whereas those in the ICU cannot. The WDHB also operates a forensic psychiatric unit, the Mason Clinic.

8 The Mason Clinic offers forensic psychiatric services and is located in Point Chevalier. It comprises eight units with 107 beds in total. It houses people with mental illness or intellectual disability who have committed a criminal offence or who present a high risk to the community. This includes people detained under the Criminal Procedure (Mentally Impaired Persons) Act 2003 who have been found unfit to stand trial or not guilty by reason of insanity. None of the patients in the Mason Clinic can leave the premises to smoke. As we will describe, all units eventually became smoke-free by the end of 2009.

Development of the Smoke-free Policy

9 The WDHB, along with other District Health Boards (DHBs), have a general requirement to manage smoke-related harm on hospital sites under the Smoke-Free Environments Act 1990 (SFE Act) and the Health and Safety in Employment Act 1992 (HSE Act). 9 The WDHB developed policies and practices that reflected an increasing awareness of harm caused by smoke and a decreasing tolerance of smoking. By 2000 smoking on WDHB sites was limited to a few designated smoking rooms inside but anywhere outside.

10 In 2000 the Minister of Health issued The New Zealand Health Strategy, establishing the Government's priorities for DHBs and the wider health sector. 10 The strategy cited a reduction in smoking and smoking-related diseases as a major priority 11. Over the next 10 years the focus on smoking and smoking-related harm was reflected in various WDHB strategy documents. In 2002 the WDHB, having

requested a report on the feasibility of going smoke-free from the Executive Leadership Team, made a high-level policy decision to move toward having smoke-free sites. Between 2002 and 2004 they undertook significant work to develop a smoke-free environment policy and a policy implementation strategy. Key issues concerned the position of incapacitated patients (medical, surgical, and mental health) and whether dedicated smoking rooms or external smoking areas were required for this group. Consultation was undertaken with mental health consumers, services, and staff

11 In 2005 the WDHB prohibited smoking on all sites with some limited exceptions. The policy included a communication strategy and significant investment in smoking cessation support for patients and staff who smoked. Mental health patients were a ticular focus and the 2005 policy authorised smoking in designated...