B v Waitemata District Health Board

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young,Glazebrook,Arnold,O'Regan,Ellen France JJ
Judgment Date14 June 2017
Neutral Citation[2017] NZSC 88
Docket NumberSC 60/2016
Date14 June 2017

Neutral Citation: [2017] NZSC 88

Court and Reference: Supreme Court of New Zealand

Judges: William Young, Glazebrook, Arnold, O'Regan and Ellen France JJ

SC 60/2016

Waitemata District Health Board

Appearances: RK Francois (instructed by Warren Simpson) for B; JP Coates and PW Le Cren (instructed by Claro) for the DHB; PT Rishworth QC and PJ Gunn (instructed by the Crown Law Office) for the Attorney-General as Intervener

Facts: The Smoke-free Environments Act 1990 as amended requires employers to take reasonable steps to prevent smoking in indoor workplaces, but under s6 an employer “may permit” smoking is designated smoking rooms in, inter alia, hospitals. A strategy issued by the Ministry of Health pursuant to the New Zealand Public Health and Disability Act 2000 identified the need to reduce smoking. In 2002, the Waitemata District Health Board, which existed under the 2000 Act and operated various hospital facilities and by then had confined indoor smoking to designated rooms, decided in principle to go smoke-free; in 2005, it adopted a smoke-free policy and gradually removed smoking rooms, including in psychiatric units: people were required to leave the grounds of WDHB facilities in order to smoke. The New Zealand Bill of Rights Act 1990 requires that detainees be treated with humanity and respect for their inherent dignity (s23(5)); prohibits torture, cruel, degrading or disproportionately severe treatment or punishment (s9) or discrimination on prohibited grounds, including disability such as mental illness (s19); it also preserves other existing rights (s28).

B, a cigarette smoker, had paranoid schizophrenia that led to his placement in hospital; he also had diabetes. During a 12-week period in 2012, he was placed in WDHB psychiatric facilities. Although much of the time was spent in open wards, from which he could leave during the day in order to smoke off the grounds, he was unable to smoke during 11 days spent in locked intensive care units or 2 days spent in a general hospital being treated for hyperglaecemia. B argued that his inability to smoke during these periods breached his rights under the NZBORA and the preserved right to privacy; he also argued that s6 Smoke-free Environments Act 1990 required the WDHB to maintain a designated smoking room. Under its smoke-free policy, WDHB offered support in relation to quitting smoking, including nicotine replacement therapy. B relied on evidence that tobacco smoking amounted to a serious addiction and that NRT was of limited success in causing people to quit smoking. There was also evidence that it did deal with nicotine withdrawal symptoms.


Ellen France J (for the Court):

Introduction 1

The background 4

The appellant 5

The Board's mental health facilities 8

Development of a smoke-free policy 10

The statutory scheme 15

The Smoke-free Environments Act 16

Provisions relating to DHBs 24

An obligation to provide a dedicated smoking room? 29

Discussion 31

The Bill of Rights challenges 53

Right to be treated with humanity and with respect for dignity 54

Cruel or disproportionately severe treatment 89

Discrimination on the basis of disability 96

Right to a home or private life? 106

Decision 137


1. The Waitemata District Health Board (the Board or the WDHB) has a smoke-free policy. No smoking is permitted inside the Board's premises and no staff, patients or visitors may smoke in external areas on any of the Board's premises. Anyone wanting to smoke must leave the grounds. Patients admitted to an Intensive Care Unit (ICU) in the Board's mental health units are confined to the unit over the course of their admission and so are unable to smoke.

2. The appellant challenged the Board's smoke-free policy as it applies to patients in the Board's mental health facilities. He claimed the Board was obliged under s6 of the Smoke-free Environments Act 1990 to establish dedicated smoking rooms in those institutions. Section 6 states that an employer “may” permit smoking by patients in a hospital care institution if there is a dedicated smoking room that meets the requirements of the Act. The appellant also claimed the Board's smoke-free policy breached his rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights). The claim was unsuccessful in the High Court1 and in the Court of Appeal.2

3. On appeal to this Court, there are 2 principal issues. The first issue is whether the Court of Appeal was right that s6 of the Smoke-free Environments Act is permissive rather than imposing a mandatory obligation. The second issue is whether the Court was correct to conclude that the Board's policy was consistent with the Bill of Rights.

The background

4. We first set out relevant facts about the appellant before describing the Board's mental health facilities and the development of its smoke-free policy.

The appellant

5. The appellant is in his late 30s. He suffers from diabetes and a motor vehicle accident in 1998 resulted in traumatic brain injury. The appellant has been diagnosed as having a psychotic disorder, the primary diagnosis being one of paranoid schizophrenia. He is a cigarette smoker.

6. The appellant was an inpatient at the Board's 2 acute adult inpatient units, Waiatarau and Taharoto3 over a 12 week period beginning in June 2012.4 He spent much of his time as an inpatient in an open ward. Whilst in the open ward he was able to leave the site to smoke between 9am and 9pm. The appellant was admitted to the ICU on 3 occasions for a total of about 11 days.5 During that time he was confined. He spent another 2 days in a general hospital because of hyperglycaemia. The appellant was not able to smoke either in the ICU or whilst in the hospital.

7. The appellant, and 2 others, challenged the Board's policy in the High Court.6 At that stage, the claim was based on 2 broad grounds. The first ground was a challenge to the lawfulness of the policy as inconsistent with legislation controlling the Board. The second ground related to consistency with the Bill of Rights. Both those grounds were pursued in the Court of Appeal although only the appellant appealed. The High Court and the Court of Appeal found the smoke-free policy was lawful and within the Board's powers. Both Courts also said the policy was consistent with the Bill of Rights.

The Board's mental health facilities

8. At the time of trial, the Board owned or leased 178 facilities in total. Its mental health service included 5 inpatient sites and a number of community settings.

The Taharoto unit is on the North Shore Hospital site and the Waiatarau unit is a part of the Waitakere Hospital site. At the time of the appellant's admission, the Taharoto ICU had 9 beds and the Waiatarau ICU had 8 beds.

9. The WDHB also operates the Mason Clinic, an inpatient forensic psychiatry unit; the Kingsley Mortimer unit, an inpatient unit for older people with dementia and psychiatric conditions; and Pitman House, an inpatient unit as part of its alcohol and drug service.

Development of a smoke-free policy

10. The policy under challenge in the proceedings was issued by the Board in November 2009.7 It reflected policy development by the Board over a number of years. The New Zealand Health Strategy issued by the Minister of Health under s8(1) of the New Zealand Public Health and Disability Act 2000 (the NZPHD Act) in 2000 provided the framework for the direction and the priority subsequently given by the Board to reducing smoking.8 By that point in time, smoking on WDHB sites was in essence limited to a small number of designated smoking rooms and outdoors reflecting obligations under the Smoke-free Environments Act and the Health and Safety in Employment Act 1992.

11. In 2002 the Board asked its executive team to consider the feasibility of the WDHB sites going smoke-free. By the end of that year, the Board made a decision in principle to move towards smoke-free sites.

12. Over the next 2 years further work was done on the policy and on its implementation. A smoke-free policy was adopted in February 2005 under which all WDHB sites became smoke-free. At that point, the policy included an exception authorising smoking in designated areas in mental health units. One smoking room at North Shore Hospital remained until it was ultimately decommissioned in 2006.

13. The smoke-free policy was revised in February 2006. In this version, there was an exception allowing for smoking in designated areas in mental health units. In 2007, there was a trial smoke-free policy in the Mason Clinic. The Rata unit in that clinic went smoke-free on a permanent basis in October 2008. Other mental health units under the WDHB's control

became smoke-free over the following 12 months on a progressive basis. The last of the units to become smoke-free was Waiatarau. That unit became smoke-free in late 2009.

14. The November 2009 policy provided that all of the Board's sites were smoke-free. Staff, patients and visitors were not permitted to smoke in external areas on a WDHB site and were required to leave the site if they wanted to smoke. The policy also dealt with the support to be provided to staff and patients who were smokers.

The statutory scheme

15. To put the issues on appeal in context, we need to summarise the approach taken in the Smoke-free Environments Act and describe the provisions in other statutes relating to District Health Boards (DHBs).

The Smoke-free Environments Act

16. The general purposes of the Smoke-free Environments Act include reducing the exposure of non-smokers to “any detrimental effect on their health caused by smoking by others”.9 The Act also aims to regulate the marketing and advertising of tobacco products and to monitor and regulate the presence of harmful constituents in tobacco...

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