B v Waitemata District Health Board  NZHC 1702 (8 July 2013)
Three applicants challenged a Waitemata District Health Board policy to prohibit smoking in its hospitals and surrounding grounds (Policy). The applicants argued that the Policy was inconsistent with the Board’s controlling legislation and the New Zealand Bill of Rights Act 1990 (Bill of Rights).
The New Zealand High Court dismissed the applicants’ claims, finding that the Board was lawfully exercising its powers consistent with its statutory framework. His Honour Justice Asher found no rights were limited by the Policy; however, he concluded that even if there were, these limitations would be justified in accordance with the Bill of Rights.
The Policy required the Board to ensure that employees, patients and members of the public were protected from tobacco smoke. It also charged the Board with responsibility for encouraging and supporting patients and staff to cease smoking. In accordance with the Policy, all staff, patients and visitors were required to leave the hospital and surrounding grounds to smoke.
This case was a consolidation of three different proceedings. Two of the applicants had been psychiatric inpatients at North Shore Hospital in Auckland which is run by the Board. The third applicant was a former psychiatric nurse at Waitakere Hospital, also operated by the Board.
The applicants sought judicial review of the Policy on three grounds. The applicants argued the Policy was illegal, pleading a failure to preserve dedicated smoking rooms with ventilation, a breach of the obligation to provide a safe working environment and a failure to take into account relevant considerations. The applicants also argued the policy was irrational and its implementation a breach of natural justice (including an alleged failure by the Board to take into account legitimate expectations).
The applicants further argued that the Policy breached rights protected under the Bill of Rights to be free from discrimination, to not be subjected to torture or cruel treatment and the rights of detainees to be treated with humanity and respect for the inherent dignity of the person. The applicants also relied on jurisprudence relating to the International Covenant on Civil and Political Rights and the European Convention on Human Rights to claim a breach of the right to respect for private life.
Justice Asher found that the Board, in accordance with its controlling legislation, was entitled to implement a non-smoking policy to protect patients, staff and visitors from smoke and to promote the cessation of smoking. His Honour held that in deciding on the Policy the Board did not fail to consider relevant considerations or consider irrelevant matters. Justice Asher further found that there was no irrationality, breach of duty to consult or breach of legitimate expectations.
His Honour found that there was no discrimination on the ground of psychiatric illness in breach of the Bill of Rights. His Honour noted that the restraint applied equally to all patients, staff and visitors and was not on the basis of psychiatric illness or acute illness. Rather, his Honour found that the Policy effectively prohibited smoking on the basis of particular features of the applicants’ condition (for example being a danger to themselves or others), or employment situation, that led to their detention or presence on the premises, and consequent inability to leave the hospital property to smoke.
His Honour found that an addiction to nicotine is not a disability and therefore that it was not necessary to determine whether the Policy discriminated on this ground. His Honour also concluded that there were no breaches of the other human rights argued by the applicants. However, his Honour found that even if there had been breaches of the applicants’ rights, the Policy would be a justified limitation on these; the ban is rationally connected with the purpose of reducing smoking and protecting people from smoke inhalation, is proportionate, and does no more than is necessary to achieve its purpose.
It is illegal in Victoria to smoke in enclosed workplaces (Tobacco Act 1987 (Vic)). There are exemptions to this law for areas in approved mental health services. However, many Victorian hospitals do not allow smoking within a defined perimeter of the hospital and most have smoke-free zones that include outdoor areas such as internal courtyards. In addition to these policies the Victorian Chief Psychiatrist has developed a guideline promoting smoke-free public mental health inpatient and residential units (issued May 2012).
Similar to this case, there is scope to argue that smoke-free policies in Victorian psychiatric inpatient units contravene the rights of patients to humane treatment when deprived of liberty and to protection from torture and cruel, inhuman or degrading treatment, contrary to the Victorian Charter of Human Rights (sections 10 and 20). It is arguable that nicotine deprivation and its associated effects, particularly for psychiatric inpatients in secure extended care units, could be sufficiently severe to constitute physical and mental suffering contrary to these rights. It is also arguable that smoke-free policies contravene the rights of involuntary patients to recognition and equality before the law, contrary to section 8 of Victoria’s Charter of Human Rights. However, any challenge on these grounds would need to overcome the proportionality test in section 7(2) of the Charter which allows rights to be subject to reasonable limitations. Although unsuccessful in this New Zealand case, there is scope in the Victorian context to argue that there are less restrictive means reasonably available to achieve the purposes of encouraging smoking cessation and protecting patients, staff and passers-by from the effects of smoke inhalation.
There is also scope to argue that implementing smoke-free policies in Victorian psychiatric inpatient units constitutes unlawful discrimination in breach of the Victorian Equal Opportunity Act 2010 (EO Act). Case law in other jurisdictions has entertained the idea that drug dependence falls within the definition of disability for the purposes of equal opportunity legislation. In this context it would be open to decision-makers to find that nicotine addiction would also fall within this category. However, any challenge under the EO Act would need to overcome issues of causation as well as an exception permitting discrimination if it is reasonably necessary to protect the health or safety of any person (including the person discriminated against) or of the public generally (EO Act, section 86).
The decision is available at: http://www.nzlii.org/nz/cases/NZHC/2013/1702.html
Lauren Hodes is a lawyer in the Equality Law Program at Victoria Legal Aid.