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B v Waitemata District Health Board

B v Waitemata District Health Board

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NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME OF APPELLANT REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 60/2016 [2017] NZSC 88

BETWEEN
B (SC 60/2016)

Appellant

AND

WAITEMATA DISTRICT HEALTH BOARD

Respondent

Hearing:
16 November 2016

(Further submissions received 9 May 2017)

Court:

William Young, Glazebrook, Arnold, OʼRegan and
Ellen France JJ

Counsel:

R K Francois for Appellant
J P Coates and P W Le Cren for Respondent
P T Rishworth QC and P J Gunn for Attorney-General as
Intervener

Judgment:

14 June 2017

JUDGMENT OF THE COURT

A The appeal is dismissed.

B There is no order as to costs.

REASONS

(Given by Ellen France J)

Table of Contents

Para

Introduction [1]

The background [4]

The appellant [5]

The Board’s mental health facilities [8]

B (SC 60/2016) v WAITEMATA DISTRICT HEALTH BOARD [2017] NZSC 88 [14 June 2017]

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]

Introduction

[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 s 6 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

1 B v Waitemata District Health Board [2013] NZHC 1702, [2013] NZAR 937 (Asher J) [B v WDHB (HC)].
2 B v Waitemata District Health Board [2016] NZCA 184, [2016] 3 NZLR 569 (Stevens, Cooper and Kós JJ) [B v WDHB (CA)]. Leave to appeal to this Court was granted in B (SC 60/2016) v Waitemata District Health Board [2016] NZSC 111.

[3] On appeal to this Court, there are two principal issues. The first issue is whether the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZSC 88
Decision Date: 14 June 2017

CaseChat Overview and Summary

In this case, the Supreme Court of New Zealand dismissed an appeal by a patient who had challenged the Waitemata District Health Board's (the Board) smoke-free policy as it applied to patients in the Board's mental health facilities. The appellant claimed that the Board was obliged under s 6 of the Smoke-free Environments Act 1990 to establish dedicated smoking rooms in those institutions and that the Board's smoke-free policy breached his rights under the New Zealand Bill of Rights Act 1990. The Court of Appeal had previously dismissed the appellant's claim and leave to appeal to this Court was granted. On appeal, the Court considered two principal issues: whether the Court of Appeal was right that s 6 of the Smoke-free Environments Act is permissive rather than imposing a mandatory obligation and whether the Court was correct to conclude that the Board's policy was consistent with the Bill of Rights. The Court concluded that there is no obligation on the Board to provide dedicated smoking rooms in its mental health institutions. The Court found that s 6 of the Smoke-free Environments Act is permissive. The Court also concluded that the smoke-free policy was consistent with the Bill of Rights. The policy did not breach s 23(5) as it was implemented in a humane way and with respect for dignity, taking into account the need for appropriate management of nicotine withdrawal symptoms. The Court also found that the policy did not breach s 9 of the Bill of Rights as it did not meet the high threshold for a breach of the right not to be subjected to cruel, degrading, or disproportionately severe treatment or punishment. The Court further held that the policy did not amount to discrimination on the basis of disability, as the basis of the prohibition on smoking was not that the appellant was a psychiatric patient but because he was on hospital grounds and required to observe the rules applicable whilst in the grounds. The Court also found that there was no existing right to smoke as contended for by the appellant. The Court dismissed the appeal and there is no order as to costs.

Orders