Three60 Consult Logo

Case Court Appeal Upheld Total Smoking Ban Waitemata Dhb Premises

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

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Subscribe to Newsletter

Christmas is coming…

Christmas is coming…

Once Labour Day has been [yes, believe it or not it’s this coming Monday], the next public holidays are at Christmas and New Year. It always feels like employers have to put a bit more thought into Christmas and New Year because: there are four public holidays; this is a time that many businesses have their annual closedown period; many employees take their annual leave; some employees don’t have enough leave to cover this period; some employment agreements have special rates for these public holidays; and, let’s face it, it is a busy busy busy time. In the next few weeks, my colleague, Tasneem Begum, and I will be offering a free webinar for those employers who want a bit more information around those tricky calculations for leave at this time of the year. We will also be able to answer the questions you have and the challenges you face with leave during the Christmas/New Year period. You are not alone with the questions you have – Questions we are often asked at this time of the year are about employing staff to cover the busy Christmas period

Read More
What the heck is going on with pay?

What the heck is going on with pay?

While we are conscious of the impact that inflation is having on wage and salary conversations, there are four other levers that have been, and are being, used to bring about fundamental change and significant uplift to pay in New Zealand. The Government is using these levers to drive increases in pay at various levels in ways that we may not be conscious of. However, when brought together as a single thread, they are having a big impact.

Read More
To Mediate or not to Mediate

To Mediate or not to Mediate

To mediate or not to mediate – that is the question… While William Shakespeare put into verse Hamlet’s soliloquy in endless agonising verse about dire choices with absolutely no chance of a happy ending – it is not so with mediation. Change the name, and the thinking around the word mediation. Let’s start thinking about it and calling it “an opportunity”. That’s really what mediation is; an opportunity for parties in conflict to come together and sort out their problem(s). It doesn’t have to be the only option, but it should be considered as a first step.

Read More
PREV NEXT