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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 COURT OF APPEAL OF NEW ZEALAND

CA524/2013 [2016] NZCA 184

BETWEEN
B

Appellant

AND

WAITEMATA DISTRICT HEALTH BOARD

Respondent

Hearing: 1 March 2016

Court:

Stevens, Cooper and Kós JJ

Counsel:

R K Francois for Appellant
J P Coates and P W Le Cren for Respondent
P J Gunn and A L Dixon for Attorney-General as Intervener

Judgment:

11 May 2016 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B There is no order as to costs.

REASONS OF THE COURT

(Given by Stevens J)

B V WAITEMATA DISTRICT HEALTH BOARD [2016] NZCA 184 [11 May 2016]

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

1 (17 May 1990) 507 NZPD 1634.

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.…

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: [2016] NZCA 184
Decision Date: 11 May 2016 at 11.30 am

CaseChat Overview and Summary

Mr B is a patient who was detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992. He was detained at various times in the intensive care units (ICUs) of the Waitemata District Health Board (WDHB). The WDHB operates a smoke-free policy that prohibits smoking on all its premises and grounds. Mr B brought a challenge to the lawfulness of the smoke-free policy in the High Court. He claimed the policy was unlawful under the Crown Entities Act 2004, breached his rights under the New Zealand Bill of Rights Act 1990 (NZBORA), and that it discriminated against him in breach of s 19 of the NZBORA. The High Court rejected all claims. Mr B appealed to the Court of Appeal. The appeal was dismissed. The Court of Appeal found that the smoke-free policy was lawful. The policy was implemented in accordance with the statutory powers of the WDHB. The policy was also rationally connected to the objective of improving health. It was proportionate to the objective. The policy did not breach Mr B's rights under the NZBORA. The policy did not discriminate against Mr B. It was a neutral rule with no particularised effect on psychiatric patients.

Orders