B v Waitemata District Health Board

[2016] NZCA 184

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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.    Patients in  general  wards who, because of physical  or medical constraints, are not able to leave the grounds to smoke outside the perimeter are similarly affected.

[3]      Mr B,  along  with  two  others,  challenged  the  Smoke-free  Policy  in  the High Court.2   Two broad grounds were advanced.  The first involved judicial review whereby the Smoke-free Policy was said to be unlawful because it was inconsistent with the WDHB controlling legislation.   The second was a claim that the policy breached the applicants’ rights under the New Zealand Bill of Rights Act 1990 (NZBORA).  The challenge was rejected by Asher J on both grounds.3    Only Mr B appeals.

[4]      Mr B seeks to advance his appeal essentially on behalf of himself and others who suffer from mental illness, particularly patients who have the need for formal admission to the Intensive Care Units (ICUs) operated by the WDHB.  The appeal is also brought ostensibly in the interests of other non-psychiatric patients who are bedridden and hence unable to leave the hospital buildings and grounds to smoke.

The High Court conclusions are challenged on multiple grounds.4

2      One was a former psychiatric nurse employed by the WDHB prior to her retirement and the other a psychiatric patient who has previously been under the care of the WDHB.

3      B v Waitemata District Health Board [2013] NZHC 1702 [High Court judgment].

4      Mr B also sought to adduce extra evidence in support of his appeal in the form of one affidavit alleging discrepancies in the enforcement of the WDHB’s policy and two affidavits alleging deaths had occurred as a result of psychiatric patients absconding while on cigarette breaks. This application was dismissed by this Court in B v Waitemata District Health Board [2015] NZCA 139.

Background

The appellant

[5]      Mr B is 36 years old.  He has a psychotic disorder, with a primary diagnosis of paranoid schizophrenia.   He also suffers from diabetes and a traumatic brain injury resulting from a motor vehicle accident.   His involvement with the WDHB mental  health  services  occurred  within  a  nine-month  period  from  June 2012  to February 2013 when he was subject to a compulsory inpatient treatment order and then a community treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act).  As an inpatient Mr B mainly lived in an open ward, but on three occasions, amounting to some 12 days in total, he was

placed in the ICU from which he could not  leave.5     The ICU is  a segregated,

low-stimulus environment.

[6]      Mr B’s time as an inpatient postdates the implementation of the WDHB’s

Smoke-free  Policy.     He  is  a  long-time  smoker  and  reports  smoking  around

15 cigarettes per day.  He says he enjoys smoking because it is calming and helps him feel relaxed.  Mr B contends the effect of the Smoke-free Policy forcing him to stop smoking is that he gets very uptight and feels as though a part of his freedom is taken away from him.

WDHB mental health units

[7]      The  WDHB’s  adult  mental  health  services  comprise  two  acute  units: Waiatarau and Taharoto.6    These units provide inpatient mental health treatment to both  voluntary/informal  psychiatric  patients  and  compulsory  psychiatric  patients who  are  subject  to  an  order  under  the  MHCAT  Act.    The  Waiatarau  Acute Admissions  Unit  is  located  at  Waitakere  Hospital  in  West  Auckland.    It  went

smoke-free in September 2009 and has 32 beds, eight of which are in the ICU.7

5      Mr B was first admitted voluntarily to the WDHB’s Waiatarau Acute Admissions Unit.  He was later transferred to Taharoto Acute Admissions Unit until 12 September 2012.  He was subject to a community treatment order from 1 October 2012.  Mr B was placed in the Taharoto ICU three times during his time as an inpatient.  He was also admitted to the medical ward at North Shore Hospital between 29 June and 1 July 2012 due to hypoglycaemia.  Mr B’s community treatment order expired on 14 February 2013 and he has had no further contact with the WDHB since.

6      The Taharoto Acute Admissions Unit has since been upgraded and renamed He Puna Wāiora.

7      The mean length of stay in the Waiatarau ICU is 9.6 days, with a median of 6.5 days.

Patients in the open wards are permitted (if their clinical condition allows) to walk off of the WDHB site to smoke, whereas those in the ICU cannot.   The Taharoto Acute Admissions Unit is located at North Shore Hospital in Takapuna.   It went smoke-free in August 2009.   Taharoto has 39 beds, nine of which are ICU beds.8

Patients in the open ward may be allowed by their clinicians to leave the premises to smoke, whereas those in the ICU cannot.   The WDHB also operates a forensic psychiatric unit, the Mason Clinic.

[8]      The Mason Clinic offers forensic psychiatric services and is located in Point Chevalier.   It comprises eight units with 107 beds in total.   It houses people with mental illness or intellectual disability who have committed a criminal offence or who present a high risk to the community.  This includes people detained under the Criminal Procedure (Mentally Impaired Persons) Act 2003 who have been found unfit to stand trial or not guilty by reason of insanity.  None of the patients in the Mason Clinic can leave the premises to smoke.   As we will describe, all units eventually became smoke-free by the end of 2009.

Development of the Smoke-free Policy

[9]      The WDHB, along with other District Health Boards (DHBs), have a general requirement to manage smoke-related harm on hospital sites under the Smoke-Free Environments Act 1990 (SFE Act) and the Health and Safety in Employment Act

1992 (HSE Act).9    The WDHB developed policies and practices that reflected an

increasing awareness of harm caused by smoke and a decreasing tolerance of smoking.    By  2000  smoking  on WDHB  sites  was  limited  to  a  few  designated smoking rooms inside but anywhere outside.

[10]     In 2000 the Minister of Health issued The New Zealand Health Strategy, establishing the Government’s priorities for DHBs and the wider health sector.10  The strategy cited a reduction in smoking and smoking-related diseases as a major priority.11    Over the next 10 years the focus on smoking and smoking-related harm

was reflected in various WDHB strategy documents.   In 2002 the WDHB, having

8      The mean length of stay in the Taharoto ICU is 10.8 days, with a median of 6 days.

9      We discuss the broader statutory context for DHBs below at [23] et seq.

10     Ministry of Health The New Zealand Health Strategy (December 2000).

11     The New Zealand Health Strategy, above n 10, at 13.

requested a report on the feasibility of going smoke-free from the Executive Leadership  Team,  made  a  high-level  policy  decision  to  move  toward  having smoke-free  sites.    Between  2002  and  2004  they  undertook  significant  work  to develop a smoke-free environment policy and a policy implementation strategy.  Key issues concerned the position of incapacitated patients (medical, surgical, and mental health) and whether dedicated smoking rooms or external smoking areas were required for this group.  Consultation was undertaken with mental health consumers, services, and staff.

[11]    In 2005 the WDHB prohibited smoking on all sites with some limited exceptions.     The  policy  included  a  communication  strategy  and   significant investment in smoking cessation support for patients and staff who smoked.  Mental health patients were a particular focus and the 2005 policy authorised smoking in designated areas in mental health units.

[12]     In  2007  the  WDHB  reconsidered  smoking  in  its  mental  health  services. Smoking in mental health units was addressed proactively but cautiously, as traditionally there had  existed  an  ingrained smoking culture  and  less  developed smoking cessation support in mental health services. A pilot scheme was established at  the  Mason  Clinic.    Consultation  was  undertaken  with  patients,  staff  and  the unions.    In  October  2008  the  Rata  Unit  at  the  Mason  Clinic  went  completely smoke-free.  Implementation was managed on a unit by unit basis resulting in other WDHB mental health units going smoke-free over the following 12 months.

The Smoke-free Policy

[13]     In November 2009 the Smoke-free Policy was issued, prohibiting smoking both inside and on the grounds of all WDHB sites, including mental health units. This was the end result of many years of planning, dating from the New Zealand Health Strategy document in 2000.   The Smoke-free Policy was developed in the context  of  the  very  significant  changes  in  societal  attitudes  to  smoking  and  to smoking cessation practices that developed over this period.  The scope of the policy

has been summarised above.12   Its purpose is “to ensure that employees, patients and

12 At [1].

members of the public are protected from tobacco smoke”.  The WDHB undertook the concomitant responsibility “to encourage and support patients and staff not to smoke”.

High Court judgment

Judicial review

[14]     In  2013,  Mr B  (and  the  other  applicants)  sought  judicial  review  of  the WDHB’s Smoke-free Policy and came before Asher J  in the High Court.   The Smoke-free Policy was challenged on multiple grounds of judicial review: illegality, irrationality, breach of natural justice, failure to take relevant considerations into account, and legitimate expectation.

[15]     The core issue was illegality, a question of whether the WDHB was acting within its powers in introducing the Smoke-free Policy.  In this, the judicial review challenge largely turned on the purposes and powers of the WDHB which, for all DHBs, are defined by the New Zealand Public Health and Disability Act 2000 (NZPHD Act).  After examining the powers and purposes of the WDHB, Asher J

concluded:13

Smoking is a recognised and preventable health hazard for New Zealanders. This  is  rightly  not  contested  by  the  applicants.    The  containment  and reduction of that hazard in my view falls entirely within the purposes of DHBs to “improve, promote and protect the health of New Zealanders”.  If a DHB bans smoking on its property as a matter of considered policy, it is taking steps to promote the cessation of individual New Zealanders smoking, and thereby protect their health and improve it, and protect others from tobacco smoke. The elimination of passive smoking promotes the same end.

[16]     Asher J also considered whether the Smoke-free Policy breached s 6 of the SFE Act, which allows an employer to permit smoking by patients in dedicated smoking rooms in the hospital care institutions.14     He concluded that this merely

allows smoking to take place; s 6 does not anticipate or assume the existence of

13 High Court judgment, above n 3, at [28].

14     An  exception  to  the  prohibition  on  smoking  in  workplaces  under  s  5  of  the  Smoke-free

Environments Act 1990 (SFE Act).

smoking in hospitals.  The Judge therefore held the WDHB was acting intra vires when it enacted the Smoke-free Policy.15

[17]     The judicial  review challenge also  alleged  a failure to take into account relevant considerations, with particular emphasis on the rights of patients.16     The Judge found the WDHB gave careful consideration to the implications of the Smoke- free Policy on patients who smoke.17    To the extent that economic considerations were relevant, the Judge observed that the stated objectives of the NZPHD Act are to be pursued “to the extent that they are reasonably achievable within the funding provided”.18

[18]     The  challenges  based  on  irrationality  and  legitimate  expectation  were rejected.19    On the claimed lack of consultation the Judge found there was no obligation on the WDHB to consult and nothing in the relevant legislation that could give rise to a right of any party to be consulted on the issue.20    In any event the evidence disclosed there was consultation with staff, patients and others with an interest in smoking.  The Judge found a lengthy history of interchanges between the WDHB working groups and other organisations.21   In summary, there was “slow and cautious   movement   as   the   Smoke-Free   Policy   developed”   with   plenty   of consideration and consultation during the decade-long process of development.22

Breach of rights

[19]     On the rights-based challenge, Mr B’s primary focus was on the right to be

free from discrimination provided for in s 19(1) of the NZBORA.   Two forms of

15 High Court judgment, above n 3, at [40]. The Judge distinguished this case from those where challenges have been brought by prisoners. Those in charge of prisons do not have the same functions and powers as DHBs and were bound by s 6A of the Smoke-free Environments Act: at [36]–[39] and [92].

16     These were argued by Mr B to emanate from the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, the ethical principles in the Code of Ethics promulgated by the Royal Australian and New Zealand College of Psychiatrists, and the United Nations Convention on the Rights of Persons with Disabilities.

17 High Court judgment, above n 3, at [45].

18     At  [42]  citing s 3(1)  and  (2)  of  the  New Zealand Public  Health and  Disability Act  2000 (NZPHD Act).

19     At [46] and [51] respectively.

20 At [47].

21 At [48]. A brief outline of some of the consultation is given at [9]–[12] above.

22     At [48]–[49].

unlawful discrimination were alleged:  first, as between detained psychiatric patients and  non-detained  psychiatric  patients,  and  second,  as  between  smokers  and non-smokers.23  Asher J rejected both claims, stating:24

There was no discrimination on the ground of psychiatric illness in breach of the New Zealand Bill of Rights Act 1990. The restraint applied equally to all patients, staff and visitors and was not on the basis of psychiatric illness or acute illness.  Rather, the Smoke-free Policy effectively prohibited smoking on the basis of particular features of the applicants’ condition (danger to themselves or others or acuity of condition), or employment situation, that led to their detention or presence on the premises, and consequent inability to leave the hospital property to smoke.  There was no discrimination on the ground of a disability, as nicotine dependence from smoking is not a disability.

[20]     Mr B also contended there was a breach of the right not to be subjected to torture or cruel treatment,25 the right to be treated with humanity and with respect for the inherent dignity of the person,26 the right to respect private life,27 and the right to natural justice.28   Asher J rejected each of these claims.  The Judge also determined that, if he was wrong on any of the breach of rights claims, any limitation on the

rights  and  freedoms  of  Mr B  under  NZBORA were  “of  the  type  that  could  be demonstrably justified in a  free  and  democratic society”  and  thus  constituted  a justified limitation under s 5.29

[21]     Thus, the applicants’ challenge was unsuccessful.

Issues on appeal

[22]     Despite the filing by Mr Francois, for Mr B, of the notice of appeal and three amended notices, the following agreed issues on appeal emerged:

23 High Court judgment, above n 3, at [55]. Mr B argued smokers suffer from a qualifying disability under the Human Rights Act 1993, which was rejected by Asher J at [66].

24 At [94].

25     New Zealand Bill of Rights Act 1990 (NZBORA), s 9.

26     Section 23(5).

27     Section 28 and International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) (ICCPR), art 17.

28     NZBORA, s 27.

29     High Court judgment, above n 3, at [90] and [95].

Judicial review

(1)Is the Smoke-free Policy, which prohibits smoking at all WDHB sites, lawful?  In particular, did the WDHB exercise its powers in a manner consistent with its obligations under the Crown Entities Act 2004 and the NZPHD Act?

(2)      Did the WDHB fail to take into account relevant factors?

(3)Does Mr B have a legitimate expectation, including a right to be consulted, to smoke in the WDHB’s psychiatric units?  If so, was that expectation breached by the WDHB?

Rights-based challenge

(4)Does the Smoke-free Policy amount to a prima facie breach of Mr B’s right not to be subjected to torture or cruel treatment under s 9 of the NZBORA?

(5)Is there a breach of the right to be treated with humanity and with respect for the inherent dignity of the person under

s 23(5) of the NZBORA?

(6)Is there a breach of the right to be free from discrimination under s 19 of the NZBORA?

(7)Is there a right to private/home life recognised under s 28 of the NZBORA?  If so, does the Smoke-free Policy breach that right?

(8)If there is a prima facie breach of one or more of Mr B’s rights set out above, is the Smoke-free Policy a justified limitation on Mr B’s rights and freedoms under s 5 of the NZBORA?

Ground one — lawfulness of the WDHB’s actions

Crown Entities Act — ulterior purpose

[23]     On appeal, Mr B challenges the lawfulness of the Smoke-free Policy on two bases: that the WDHB was acting ultra vires under the Crown Entities Act 2004, and that the WDHB acted contrary to its objectives under the NZPHD Act. The main focus in the High Court was on the latter;  an argument under the Crown Entities Act does not appear to have been advanced or addressed.   Mr Francois, counsel for Mr B, puts this new argument thus:

The [WDHB’s] blanket ban on smoking in psychiatric hospitals cannot be justified under the Crown Entities Act 2004 because it breaches the NZBOR Act and is inconsistent with the statutory framework of mental health services, and is thereby ultra vires.

[24]     Mr Francois accepted in argument that if the rights claims under NZBORA failed, this new ground based on the Crown Entities Act could not succeed.  But in his written submissions he developed a different argument, also raised on appeal for the first time.  He submits that in the context of mental health the powers of DHBs must be exercised primarily for the specific purpose of providing mental health services to psychiatric patients in a hospital.  Forcing mental health patients to quit smoking in a hospital and attempting to cure them of nicotine addiction is not a mental health service as contemplated by the MHCAT Act.  Treatment orders under that legislation are issued for the purpose of ensuring treatment of persons with a mental health disorder and nicotine addiction is not a mental disorder.  A DHB is not permitted to use that legislation “for the ulterior purpose of administering treatment for nicotine addiction which results in a collateral loss of liberty for patients who are acutely unwell”.   The smoking ban for such patients is thus inconsistent with the statutory framework for mental health services and is ultra vires.

[25]     This point may be summarily dealt with.   Mr Francois runs into two initial difficulties with this argument; first, it was not pleaded in the amended statement of claim, so the WDHB had little opportunity to respond to the ulterior purpose allegation, and second, it is not covered by the agreed issues on appeal.   In any event, the source of WDHB’s functions and powers is the NZPHD Act. Unsurprisingly the objectives of the NZPHD Act include the protection of the health

of all New Zealanders.30    The WDHB must take into account all relevant statutory provisions pertaining to its operations including the SFE Act and the HSE Act.   It must also protect the health interests, not only of patients (whether present under voluntary or compulsory treatment regimes), but also of staff and visitors.  Finally, there is no suggestion in any of the evidence that the WDHB was motivated by an ulterior motive such as that postulated by Mr Francois in introducing the Smoke-free Policy. This new ground has no merit and must fail.

Powers and objectives of DHBs

[26]     The WDHB is established as a Crown entity under the Crown Entities Act.31

As a DHB, its objectives are found under the NZPHD Act.   The purpose of the NZPHD Act is to provide for the public funding and provision of health services and disability support services, and to establish publicly owned health and disability organisations in order, as the Act says:32

(a)       To achieve for New Zealanders—

(i)       The improvement, promotion, and protection of their health; (ii)     The promotion of the inclusion and participation in society

and independence of people with disabilities;

(iii)     The best care or support for those in need of services:

…

[27]     These  objectives  are  to  be  pursued  to  the  extent  they  are  reasonably achievable within the funding provided to a DHB.33   The Minister has power under s 8(1) of the NZPHD Act to determine a strategy for health services.  The objectives of DHBs are set out in s 22. Those relevant to the present appeal include:34

(a)       to   improve,   promote,   and   protect   the   health   of   people   and communities:

…

30     NZPHD Act, s 3(1)(i). The interests of mental health patients, whether voluntary or compulsory, cannot therefore be viewed in isolation from other patients.

31     Crown Entities Act 2004, s 7(1).

32     NZPHD Act, s 3(1)(a).

33     Section 3(2).

34     Section 22(1).

(c)       to promote effective care or support for those in need of personal health services or disability support services:

…

(h)       to  foster  community participation  in health  improvement,  and  in planning for the provision of services and for significant changes to the provision of services:

…

(k)       to be a good employer in accordance with section 118 of the Crown

Entities Act 2004.

[28]     For the purpose of pursuing its objectives under a health strategy established by the Minister, each DHB has the functions set out in s 23 of the NZPHD Act. These include promoting the “reduction of adverse social and environmental effects on the health of people and communities”.35

[29]     The functions, objectives and statutory purposes summarised above were all considered by Asher J.  On appeal Mr Francois argues that the Judge erred by failing to consider the further objective in s 22(1)(i) of the NZPHD Act, namely “to uphold the ethical and quality standards commonly expected of providers of services and of public sector organisations”.   Mr Francois submits the Judge also erred by giving insufficient weight to the expert evidence adduced by Mr B in the High Court from

medical professionals on this subject.  On this issue, Asher J concluded:36

I have also before me a great deal of evidence from both sides about what is happening overseas in relation to smoking bans, and the effectiveness of smoking bans on causing smokers to permanently stop smoking, and a commentary on the ethics of a smoking ban.  I have not found it necessary to review that evidence in detail in this decision as, for reasons that I will set out, I do not consider that an analysis of the benefits or detriments resulting from the smoking ban or its ethics is required to determine this application.

[30]     Mr Francois submits the Judge was wrong, in the context of judicial review, to disregard the evidence of medical professionals relied on by Mr B as to ethical and quality issues.  In particular he complains the Judge gave insufficient weight to

evidence such as the following:

35     NZPHD Act, s 23(1)(h).

36 High Court judgment, above n 3, at [14].

(a)       several of the principles of the Code of Ethics of the Royal Australian and New Zealand College of Psychiatrists;37

(b)the  fact  some  psychiatrists  believe  a  blanket  ban  on  smoking  is injurious to the mental health of patients;38

(c)       the   suggestion    a   blanket    ban   interferes    with   the   therapeutic relationship between nurses and patients;

(d)the view that a blanket ban undermines the quality standards expected of providers under the NZPHD Act;  and

(e)       the negative impact a blanket ban has on respect for the personal autonomy of psychiatric patients.39

[31]     Mr Francois essentially seeks to use the objective for DHBs in s 22(1)(i) to uphold ethical and quality standards as a hook on which to hang a submission the Judge gave insufficient weight to evidence adduced by Mr B on this topic.  There are several issues with this submission.  First, the objective relied on is but one of twelve broad objectives set out in s 22 of the NZPHD Act applicable to DHBs.   None of these objectives are mandatory and they are not given particular priority in the section.  Each must be read in context, particularly in light of the purposes of the legislation,  one  of  which  is  to  achieve  for  New  Zealanders  the  improvement,

promotion and protection of their health.40   The powers of a DHB must be construed

broadly,  consistent  with  the  purposes  of  the  governing  legislation.    As Asher J

correctly observed, the NZPHD Act does not specifically prescribe every action that may be carried out by a DHB.41

37     This submission overlaps with the second ground of Mr B’s judicial review appeal.

38     Such opinion is said to have led to a reversal of the ban in Hillmorton Psychiatric Hospital in

Christchurch in 2013.

39     The summary is drawn largely from the evidence of Dr James Adams, Dr R M Burns and

Dr Tim Dare.

40     NZPHD Act, s 3(1)(i).

41     High Court judgment, above n 3, at [24] citing Attorney-General ex relatione Lewis v Lower

Hutt City [1964] NZLR 438 (CA) and Cropp v Judicial Committee [2008] NZSC 46, [2008]
3 NZLR 774 at [26]–[27].

[32]     Second, we accept DHBs generally must seek to uphold ethical and quality standards commonly expected of providers of health services.  However, how they meet those standards in respect of a particular class of patients, such as acute mental health patients, will be a matter of professional and clinical judgment.  Whether such judgment is susceptible to judicial review must be open to doubt.42     Courts are rightly cautious about intervening in substantive matters of clinical, medical and ethical judgment by a statutory entity tasked by Parliament to deliver public health services.43     To the extent the statutory objective in s 22(1)(i) requires a DHB to address ethical and quality standards in the delivery of public health services for mental health patients, these are matters of medical practice and judgment.  As such, merits-based  judicial  review  ought  not  be  readily available.    The  views  of  the WDHB in matters of professional medical and ethical judgment ought to be afforded

considerable weight.  In deference to this, we are satisfied that the processes adopted by the WDHB in establishing the Smoke-free Policy were robust and that the WDHB fully  addressed  issues  of  ethical  and  quality  standards  in  the  course  of  the consultation process.

[33]     Thirdly, to the extent that this Court will examine whether the Smoke-free Policy is in accordance with ethical and quality standards, the requirements of good medical practice provide an apt starting point.  The rights of consumers of health and disability services generally — and the concomitant obligations of health providers

— are found in the Code of Health and Disability Services Consumers’ Rights.44

These include that every consumer has “the right to have services provided that comply with legal, professional, ethical and other relevant standards”.45   Providers of healthcare services such as the WDHB must also meet relevant service standards.46

These include the service standards contained in the Health and Disability Services

42     Where the decision is one of a public body with expertise in the subject matter, courts are reluctant to intervene unless the body has acted in bad faith, materially misapplied the law, or has exercised the power in a way that cannot rationally be regarded as coming within the statutory purpose:   Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008]

1 NZLR 42 at [55]. See also Health Advocates Trust v Director of Health and Disability Services Consumer Advocacy [2008] NZCA 67 at [45]; and Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [139].

43     See generally Ron Patterson “Access to Health Care” in Peter Skegg and Ron Patterson (eds)

Health Law in New Zealand (Thomson Reuters, Wellington, 2015) 67 at [3.7].

44     Health  and  Disability  Commissioner (Code  of  Health  and  Disability  Services  Consumers’

Rights) Regulations 1996.

45     Regulation 2.

46     Health and Disability Services (Safety) Act 2001, s 9.

(Core) Standards.47    One such standard requires that “consumers are not put at risk by exposure to environmental tobacco smoke.48    We agree with Mr Coates for the WDHB that these service standards emphasise the legal obligations on health providers such as the WDHB to take action to ensure all patients are not put at risk

by exposure to harmful tobacco smoke.

[34]     In terms of good medical practice, we conclude there is ample evidence to show the adverse health effects of smoking are well established.   Mr B does not dispute this proposition.  It is particularly true in a mental health context, as smoking rates  amongst  patients  with  psychiatric  illness  are  considerably  higher  than  the general population.   The evidence suggests smoking in mental health wards and ICUs has traditionally formed an important component of the culture in psychiatric wards and was in the past encouraged both directly and indirectly.  Such a culture tended  to  be a  catalyst  for some  patients  to  take up  smoking.   We  agree  with Mr Coates that allowing smokers to smoke in hospital, where everything is being done to promote and restore health, is counter-intuitive and runs contrary to the fundamental obligations of doctors and other medical health professionals.

[35]     The evidence of the WDHB also demonstrates that nicotine dependency can be managed through means other than giving mental health patients cigarettes.  All inpatients in mental health units are provided with a comprehensive smoking cessation programme.   The smoking status of new patients is ascertained upon admission and doctors undertake an assessment of needs, including nicotine dependence and the prescription of nicotine replacement therapy as required. Similarly all staff undergo smoking cessation training.   In addition, staff receive training  about  techniques  to  manage  patient  distress  or  arousal  resulting  from nicotine withdrawal or the inability to smoke.

[36]     The WDHB was following international medical practice in imposing the

Smoke-free Policy.  Dr Sharon Lawn, an expert adviser consulted by WDHB during

47     NZS 8134.1.4: 2008.

48     Standard 4.8.3.  A consumer refers to a health consumer, which includes any person on or in respect of whom any health care procedure is carried out, or a disability services consumer, which means any person with a disability that reduces that person’s ability to function independently and means the person is likely to need support for an indefinite period:  Health and Disability Commissioner Act 1994, s 2(1).

the development and implementation process, has deposed that total smoking bans are now standard practice in many inpatient mental health facilities in Australia and across the world.  The purpose of such bans for inpatients in hospital settings is to manage a toxic and addictive substance.  Dr Lawn opines that to allow smoking, the biggest  contributor to  chronic disease and  death  for all  patients,  is  absurd in a therapeutic environment.   We agree.   The evidence overall persuades us that the Smoke-free Policy is consistent with good medical practice and the ethical and quality standards required of a public medical health provider.

[37]     Fourthly, the Smoke-free Policy and our conclusions about are consistent with overseas jurisprudence.   In McCann v The State Hospitals for Scotland the decision of the Lord Ordinary that the prohibition of smoking and the possession of tobacco at the State Hospital at Carstairs was unlawful was overturned on appeal by the Scottish Court of Sessions.49  The Court stated:50

…  Affording the [State Hospitals Board] the courtesy of assuming that they know far more about the health of their patients than the courts do, the reasons given for the comprehensive ban within the grounds of a mental health institution are indeed that it answers a pressing social need to reduce the incidence of smoking, both generally and in health institutions in particular.  It is proportionate to the legitimate aim of promoting the health of those detained and those at work.  Once more, it would be surprising in the modern era if those tasked with the management of health services were not  pursuing  the  smoke-free  policies  advocated  by  the  Government, including that of going beyond the strict terms of the legislation and seeking to  secure  a  smoke-free  environment,  where  that  environment  is  directly under their management and control …

[38]     They are also in line with the views of the majority of the Court of Appeal in R(N) v Secretary of State for Health, where the joint judgment of Lord Clarke Mr and Moses LJ said:51

In short we agree with the conclusions of the Divisional Court that there is strong evidence of the dangers of smoking both to smokers and to those subject to  SHS  [second-hand  smoke]  and  powerful evidence  that in  the interests of public health a complete ban was justified in appropriate circumstances.  We further agree that substantial health benefits arose from the ban and, as experience has shown, that the disbenefits were insubstantial. As  to  SHS,  there  has  emerged  powerful  evidence  of  its  dangers  which

49     McCann v The State Hospitals Board for Scotland [2014] CSIH 71.

50 At [96].

51     R (N) v The Secretary of State for Health and R (E) v Nottinghamshire NHS Trust [2009] EWCA CIV 795 at [72].

supports the Trust’s case on justification in a way which might not have been the case in the past.   In all these circumstances we agree that the Trust’s policy would be justified under article 8(2) if article 8 were engaged at all.

[39]     Finally we refer to the joint report of the Royal College of Physicians and the Royal College of Psychiatrists (UK) published in 2013.52   The report concluded that a smoke-free policy is  crucial to promoting smoking cessation in mental health settings.53   It therefore followed that all healthcare environments used by people with mental health disorders should be “automatically smoke-free”.  Moreover, there was “no justification for healthcare staff to facilitate smoking”.54    This report provides further support for good medical practice in this area.

[40]     In considering this issue we have not overlooked the expert evidence called for  Mr B.    He  adduced  evidence  from  several  witnesses,  including  a  general physician and two psychiatrists, regarding the ethics of imposing a smoking ban on compulsorily detained psychiatric patients.  Their evidence mentioned concerns over the impact of smoking cessation on psychiatric medication and the mental health of patients.  However, importantly, none of these witnesses denied the harmful effects of smoking or, as one of the psychiatrists, Dr Burns, noted, the “need to reduce the rate of smoking in our population including psychiatric patients”.   The other psychiatrist, Dr Adams, acknowledged there may be an ethical conflict for a medical practitioner between supporting a patient’s “right to smoke” and being aware of the unhealthy consequences of smoking.  We do not consider this evidence detracts from the long-term benefits of the Smoke-free Policy or renders the Policy unethical and contrary to good medical practice.

[41]     We are therefore satisfied that the Smoke-free Policy is consistent with the WDHB’s obligations to uphold ethical and quality standards expected of care providers, notwithstanding the objections raised by the expert evidence offered by Mr B.  It follows that this first ground of appeal contending that the WDHB acted contrary to its objectives under the NZPHD Act and thus ultra vires in enacting the

Smoke-free Policy must fail.

52     Royal College of Physicians and Royal College of Psychiatrists Smoking and Mental Health

(RCP, London, 2013).

53     At 201.

54     Ibid.

Ground two — relevant considerations

[42]     Mr B claims that Asher J wrongly found there was no failure by the WDHB to take into account relevant factors.  Mr B contends the Smoke-free Policy breaches the rights of patients under the Code of Health and Disability Services Consumer Rights and the United Nations Convention on the Rights of Persons with Disabilities, and these factors were not considered by the WDHB.55   He also claims that, insofar as psychiatric patients are forced off the sites of WDHB to smoke (outside the perimeter fence), their safety is put at risk in breach of the “all reasonable steps” requirements of the HSE Act.

[43]     Some  aspects  of  this  ground  were  argued  in  the  High  Court.    Asher J

concluded as follows:56

These  are  not  factors that are  set  out  as  of  relevance  in the legislation empowering DHBs.   However, even if they were mandatory relevant considerations to be taken into account, the principle underpinning all three of these instruments, which is the promotion of the rights of patients, is consistent with the statutory objectives of DHBs to improve, promote and protect health. Those considerations have indeed been taken into account.

I am satisfied that the WDHB did give careful consideration to the implications of its policy on patients who smoke.  There were project groups and there was extensive consultation. Advice was obtained.  It is possible to see the development of a policy incrementally over a 10 year period.  I am satisfied  that  the WDHB  took  into  account  the  impact  of  its  policy  on smokers.

[44]     We agree with the conclusions reached by Asher J and for the reasons he gave.   No further elaboration is required, particularly in view of our findings in respect  of  ground  one  that  the  Smoke-free  Policy  complies  with  good  medical practice  and  is  consistent  with  the  ethical  and  quality  standards  expected  of  a provider of public mental health services.

[45]     The  second  aspect  of  this  ground  relying  on  the  “all  reasonable  steps”

requirements of the HSE Act were not advanced by Mr B in the High Court. Asher J

55 These grounds were advanced in the High Court, together with a claim of failure to take into account the ethical principles set out in the Code of Ethics promulgated by the Royal Australian and New Zealand College of Psychiatrists: High Court judgment, above n 3, at [43]. This point is not pursued on appeal.

56     At [44]–[45].

referred in passing to the provisions of this legislation placing obligations on employers to provide and maintain a safe working environment for employees.57

Not surprisingly the Judge saw the potential harm to employees posed by inhalation of smoke of others as one of the justifications of the Smoke-free Policy, and this was clearly taken into account by the WDHB:   one of the purposes of the Smoke-free Policy is to ensure compliance with the HSE Act.   Moreover, the evidence from those charged with the creation and implementation of the Smoke-free Policy is that the logistics and safety risk of patients having to go offsite to smoke was forefront in their minds.  There is no basis for suggesting this was not taken into account.  This ground of appeal must therefore fail.

Ground three — legitimate expectation and consultation

Legitimate expectation

[46]     Mr B contends patients have a legitimate expectation they can smoke on the premises of the WDHB “in accordance with the right recognised by s 6 of the SFE Act to allow smoking in outdoor areas of hospitals”, and in accordance with procedural fairness.58   This is essentially a repeat of the argument run unsuccessfully in the High Court, where it was presented more as an issue of statutory powers and lawfulness than of legitimate expectation.   Recasting the submission thus cannot,

however, cure its inherent weakness.  For completeness we address it briefly.

[47]     Section 6 of the SFE Act  relevantly provides:

6Dedicated    smoking    rooms    in    hospital    care    institutions, residential disability care institutions, and rest homes

(1)      An employer may permit smoking by patients or residents of a workplace  that  is,  or  is  part  of,  a  hospital  care  institution,  a residential disability care institution, or a rest home if—

(a)       the smoking takes place only in 1 or more dedicated smoking rooms;

and

(b)       each dedicated smoking room is equipped with or connected to a mechanical ventilation system to which subsection (2) applies; and

57 High Court judgment, above n 3, at [31].

58     Citing Lalli v Attorney-General [2009] NZAR 720 (HC).

(c)       the employer has taken all reasonably practicable steps to minimise the escape of smoke from the dedicated smoking rooms into any part of the workplace that is not a dedicated smoking room; and

(d)       for each dedicated smoking room, there is available for patients or residents who wish to socialise in a smokefree atmosphere an adequate equivalent room.

[48]     The SFE Act has the following purposes: to reduce the exposure to, and detrimental effect of, second-hand smoke on the health of people in workplaces;  to regulate and control the promotion of tobacco products;  to monitor and regulate the presence of harmful constituents in tobacco products;   and to establish a Health

Sponsorship Council.59   As Asher J observed, it does not have as one of its statutory

purposes the reduction of smoking by smokers.   To achieve some of the stated purposes, the SFE Act prohibits smoking in workplaces.60    Under s 2 the definition of workplace distinguishes between internal and open areas;   workplaces do not extend to open areas.

[49]     For hospital care institutions, an employer has the discretionary power in s 6(1) of the SFE Act to permit smoking if, and only if, the statutory criteria are met. In developing and instituting the Smoke-free Policy, the WDHB was discharging its statutory obligations, including as an employer under the SFE Act.   There is no proper  basis  upon  which  the  “may”  in  s 6(1)  can  be  interpreted  as  “must”,  as Mr Francois  submits.    Contextual  aspects  of  the  legislation  do  not  support  that approach.  The statutory power of an employer such as WDHB to permit smoking in dedicated smoking rooms in hospital care institutions cannot be converted into a mandatory obligation to do so.  Even less can such a statutory power be seen as a basis for a legitimate expectation on the part of patients that they will be provided with dedicated smoking rooms in which they might smoke.

[50]     The above is a complete answer to Mr B’s legitimate expectation argument in

reliance on s 6 of the SFE Act.  We also mention in passing the argument raised in the High Court based on s 6A of the SFE Act (now repealed), relating specifically to

59     SFE Act, s 3A

60     Section 5.

smoking in prison cells.61  Asher J held that s 6A assumed smoking would take place in prisons, a factor that was relevant to rule-making powers in the Corrections Act

2004.62     Section 6 of the SFE Act does not assume the existence of smoking in

hospitals.   Accordingly any analogy between s 6A and s 6 is entirely inapt.   The discretionary power in s 6 ought therefore to be interpreted in its proper context of hospital care institutions and not the context of correctional institutions.  In short, s 6 of the SFE Act does not assist Mr B’s legitimate expectation argument.

[51]     In this context we refer to a judgment of the Supreme Court of Victoria in De Bruyn v Victorian Institute of Forensic Mental Health.63   Mr de Bruyn, a forensic psychiatric patient, brought a challenge to the implementation of a smoke-free policy at a hospital operated by the Victorian  Institute of Forensic Mental Health  (the Institute) in which Mr de Bruyn was detained.  From 1 July 2015 smoking was not permitted anywhere on the Institute’s premises or grounds, including outdoor areas (akin to the WDHB’s Smoke-free Policy).   Mr de Bruyn claimed the smoke-free policy was beyond the power of the Institute because it fell outside the powers given

to it by the Mental Health Act 2014 (Vic) and was unlawful because it is inconsistent with the Tobacco Act 1987 (Vic).

[52] Riordan J held that the implementation of the smoke-free policy was not beyond the powers of the Institute as conferred by the Mental Health Act. The issue of whether activities such as smoking were permitted at its hospitals were directly related to the performance of its function of providing mental health services. The Judge held the provision introducing the smoke-free policy did not have to be directly related to medical treatment for mental health; there are a myriad of things that must be regulated for the proper management of a mental health facility. Further, the smoke-free policy was not contrary to the Tobacco Act. An exception to allow smoking in designated rooms in mental health facilities (similar to s 6 of the SFEA) did not create, expressly or implicitly, a statutory right to smoke. Although

the Tobacco Act did not prohibit smoking in mental health care facilities, the lack of

61     Section 6A was discussed in Taylor v Attorney-General [2013] NZHC 1659. It was held that Parliament, by implication of s 6A of the SFE Act, did not intend for the rulemaking power in the Corrections Act 2004 to ban smoking entirely in prisons.

62     High Court judgment, above n 3, at [36]–[38].

63     De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111.

a prohibition could not override a properly exercised power to adopt a smoke-free policy.  The same approach may be applied here;  the absence of a prohibition under s 6 of the SFEA does not give rise to a right, or legitimate expectation, to be able to smoke on WDHB premises.

[53]     We  briefly  address  the  second  and  broader  aspect  of  the  legitimate expectation claim. This is essentially a re-run of the argument summarily rejected by Asher J:64

Finally, there was a submission made of breach of a legitimate expectation. This  seems  to  be  put  as  a  substantive  legitimate  expectation  that  the applicants could smoke somewhere in the hospital property.   There is no procedural legitimate expectation pleaded.  There were no facts put forward that could support such a procedural or substantive legitimate expectation by any person or group.  It is not necessary to consider this issue further.

[54]     We  agree  with  the  conclusions  and  reasoning  of  Asher J.    Mr Francois submitted that mental health patients can expect to be treated for their mental health issues in accordance with the requirements of the MHCAT Act, not for ancillary general health issues.  All psychiatric patients are admitted to the care of the WDHB ICUs for psychiatric treatment, not for their addiction to nicotine.  We accept that submission as far as it goes.  What it does not establish, however, is that Mr B had a legitimate expectation that he would be able to smoke when placed in either an open ward or in an ICU under WDHB control.

[55]     A public authority may, by practice or express promise, commit itself to a particular course of action, procedure, or possibility of a substantive outcome.  The extent to which this has occurred must be considered by reference to all the surrounding circumstances.65   Here, the WDHB made no promise to Mr B to follow a certain procedure or refrain from implementing a chosen strategy or policy on the issue of smoking bans.   It could never have done that at the very time it was

developing, consulting upon and was implementing the Smoke-free Policy.  There

was thus no basis for holding this public authority to a particular promise in the

64 High Court judgment, above n 3, at [51].

65     New Zealand Association for Migration and Investments Inc v Attorney-General [2006] NZAR

45 (HC) at [145]–[146].

interests of fairness and good public administration.   Accordingly the legitimate expectation ground of appeal fails on all bases advanced by Mr B.

Consultation

[56]     Asher J concluded there was no duty to consult with psychiatric patients and staff before introducing the Smoke-free Policy.66    There was no obligation in the NZPHD Act or any other relevant legislation conferring on any party a right to be consulted on the issue.  Before us Mr Francois could point to no statutory provisions securing such a right to Mr B.67

[57]     Assuming there were an obligation on the WDHB to consult, the question is whether such consultation occurred in the development and implementation of the Smoke-free Policy.   We have discussed above in broad outline some of the consultation  undertaken  by  the WDHB.68      These  examples,  together  with  other evidence in the WDHB affidavits, amply support the finding of Asher J that the “careful and extensive efforts engaged in by the WDHB more than satisfied its public law duties”.69   Mr Francois was unable to point to any material to demonstrate that such extensive consultation did not include patients and staff.  This consultation and legitimate expectation ground of appeal fails.

Summary of conclusions on judicial review

[58]     The evidence establishes that the WDHB took great care, as a matter of good administration, in developing the Smoke-free Policy.  This was at a time when the health sector was acutely aware that the Ministry of Health was targeting as a major priority the reduction in smoking and smoking-related diseases.  In the international context, hospital authorities throughout the world were exploring smoking bans (including  total  bans),  particularly in  mental  health  facilities.    Because  of  their special characteristics, including the nature of the illnesses suffered by mental health

patients (especially patients in ICUs) and the existing pro-smoking culture, mental

66 High Court judgment, above n 3, at [47].

67     Particularly since Mr B’s admission post-dates the implementation of the Smoke-free Policy.

68     At paragraphs [9]–[12] above.

69 High Court judgment, above n 3, at [50].

health  facilities  created  a  difficult  challenge  for  administrators  and  were  given specific consideration.

[59]     Like the Court of Sessions in McCann we see the total ban imposed by the WDHB on all hospital sites (including ICUs and mental health facilities) as a reasonable response to a pressing social need to reduce the incidence of smoking and second-hand smoke.70     The aim  is  rightly to  promote the health  of all  patients (whether voluntarily present or detained), staff, and visitors to WDHB sites.   The Smoke-free  Policy is  a  manifestation  of  Government  policy consistent  with  the

requirements of good medical practice.

[60]     We agree with Asher J that the public law challenge brought by Mr B under judicial review must fail.  The WDHB’s actions were within their statutory powers in the NZPHD Act and other relevant legislation.   There is no basis for a finding of unlawfulness on any of the grounds advanced on appeal.  Similarly the WDHB did not fail to take into account any relevant factors.  The provisions of s 6 of the SFE Act do not assist Mr B.   Finally the grounds based on legitimate expectation and failure to consult have not been made out.

Ground four — s 9 NZBORA

[61]     The Attorney-General was given leave to intervene for the rights aspects of the appeal.  Crown counsel filed comprehensive and helpful written submissions and provided brief oral elaboration.   We are most grateful to counsel for the valuable assistance provided.

[62]     Mr B  contends  the Smoke-free Policy breaches  s 9  of  NZBORA,  which provides  that  everyone  has  the right  not  to  be  subjected to  torture or  to  cruel, degrading, or disproportionately severe treatment or punishment.   Mr Francois for Mr B submits there is an analogy between the treatment for nicotine addiction and

the treatment identified by the Supreme Court in Taunoa v Attorney-General as

70     McCann v The State Hospitals Board for Scotland, above n 49.

being “less than human under s 9”.71    It should be enough, he submits, to establish cruel or unusual treatment to show deprivation of a single identifiable “human need”, as suggested by the United States Supreme Court in a case involving the Eighth Amendment of the US Constitution.72   However, this authority is of little assistance. It concerned the conditions of confinement of a number of different prisoners and while the Court held that such confinement might breach the Eighth Amendment where the effect is the deprivation of an “identifiable human need”, such needs cited were  food,  warmth,  or  exercise.    Moreover,  the  Supreme  Court  held  prisoners

bringing such claims must show a culpable state of mind on the part of prison officials. The case thus has no application in the present context.

[63]     We  agree  with  Mr Gunn  for  the  Attorney-General  that  the  governing authority in New Zealand is Taunoa v Attorney-General.  The majority of the Court held ss 9 and 23(5) of NZBORA established a hierarchy of proscribed conduct.73

Within that hierarchy, s 9 is “reserved for truly egregious cases”74 involving official

conduct “which is to be utterly condemned as outrageous and unacceptable in any circumstances”.75    On the other hand, s 23(5) concerns official conduct that is less reprehensible, but still unacceptable.76

[64]     The  judgments  in  Taunoa  v Attorney-General  suggest  that  to  breach  s 9 official conduct will typically involve an intention to cause harm, conscious actions or a reckless indifference to causing harm, as well as significant physical or mental suffering.     Section  9  has  several  separate  limbs  that  may  conveniently  be

summarised from the Supreme Court judgments as follows:

71     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. There, s 9 was engage for a mentally ill prisoner who was subjected to a “Behaviour Management Regime” at Auckland Prison that involved segregation, an excessive amount of time in cell, and lack of access to exercise or rehabilitation programmes.

72     Wilson v Seiter 501 US 294 (1991) at 305.

73     Taunoa v Attorney-General, above n 71, at [170] per Blanchard J; [277], [285], [288], [297] per

Tipping J; [339] per McGrath J; [383] per Henry J; compare [5] and [80] per Elias CJ.

74     At [297] per Tipping J; and [383] per Henry J, agreeing with Tipping J on the proper judicial approach to breaches of s 9.

75     Taunoa v Attorney-General, above n 71, at [170] per Blanchard J; and [339]–[340] per McGrath

J, agreeing with Blanchard J’s conclusions on the roles of ss 23(5) and 9.

76     At [170] per Blanchard J; [285] per Tipping J; and [339]–[340] per McGrath J.

(a)      Torture consists of deliberate infliction of severe physical or mental suffering for a proscribed purpose, such as the obtaining of information.77

(b)Cruel treatment comprises treatment that deliberately inflicts suffering or results in severe suffering or distress.78

(c)      Degrading treatment involves treatment that gravely humiliates and debases the person subjected to it.79

(d)Disproportionately severe treatment is conduct that is so severe as to shock  the  national  conscience,  or  so  disproportionate  as  to  cause shock and revulsion.  Such treatment is a standard well beyond even manifestly excessive treatment.80

[65]     We agree with Mr Gunn that the following factors will generally be relevant when determining whether there has been a breach of s 9:

(a)       the nature of the conduct concerned;

(b)      the state of mind of the party responsible for the conduct;  and

(c)       the effect of the conduct on its victims.81

[66]     Having  referred  to  the  principles  set  out  in  Taunoa  v  Attorney-General, Asher J concluded that the high threshold required was “quite plainly” not met in

Mr B’s case.82  We agree.

77     At [81] per Elias CJ; [171] per Blanchard J; and [339]–[340] per McGrath J.

78     At [171] per Blanchard J;  [282]–[283] per Tipping J;  [339]–[340] per McGrath J; and [383] per

Henry J.

79     At [170] per Blanchard J and [339]–[340] per McGrath J.

80     At [172] per Blanchard J;   [289] per Tipping J;   [339]–[340] per McGrath J; and [383] per

Henry J.

81     Taunoa v Attorney-General, above n 71, at [291], [294] and [295] per Tipping J; [353] and [360]

per McGrath J; and [383] per Henry J.

82     High Court judgment, above n 3, at [70]–[71].

[67]     On appeal, Mr B relied on the disproportionately severe treatment limb of s 9. We agree with the observations of Asher J that the provision of nicotine replacement therapy is not a “panacea”, but it is a humane and meaningful treatment for the symptoms of nicotine to a smoker.83    The “treatment” in this case is not forced on patients with nicotine dependency.  It is available to patients if they wish to use it. Moreover  nicotine  replacement  therapy  is  merely  one  part  of  a  comprehensive

smoking cessation programme.  It cannot therefore be said that disallowing patients to smoke and making available an alternative treatment is treatment so severe as to cause shock and revulsion.  It follows Mr B falls well short of establishing a breach of s 9 of the NZBORA with reference to any disproportionately severe treatment. The fourth ground of appeal fails.

Ground five — s 23(5) of NZBORA

[68]     Section 23(5) protects the rights of everyone deprived of liberty.  There is no dispute that patients in the ICUs have this status.  The question for determination is what the nature of the right protected is when the NZBORA refers to being “treated with humanity and with respect for the inherent dignity of that person”.

[69]     Mr Francois suggests that there are two independent limbs of s 23(5) of NZBORA: “humanity” and “inherent dignity of the person”.  Mr B therefore brings his challenge under s 23(5) on two separate bases, submitting that:

(a)      the evidence establishes the effect of the smoking policy on patients in the ICUs is inhumane in the sense of involving inhumane treatment; and

(b)the dignity of the detained patient implies a right to liberty, which includes  the  liberty to  smoke.    The  Smoke-free  Policy is  said  to

breach the “second limb” of s 23(5).

83 At [72].

Inhumane treatment

[70]     Blanchard J in Taunoa v Attorney-General described s 23(5) as protecting against conduct that “lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.84

[71]     Whether  the  Smoke-free  Policy  involves  any  inhumane  treatment  that breaches this standard is a factual question.  Asher J found the policy was for the long term benefit of patients and was “conducted with humanity with nicotine replacement and other therapies being available to assuage the effects”.85   Moreover, the policy was carefully considered and trialled by the WDHB over a considerable period of time.  While the nicotine replacement therapy and other efforts to break the

smoking habit do not eradicate suffering, they do “assuage any emotional or physical distress”.86    We are satisfied from the evidence that these findings are clearly supportable and ought not to be disturbed on appeal.

[72]     Mr Francois  placed  reliance  on  a  statement  of  Brewer J  in  Taylor  v

Attorney-General that “forcing prisoners into nicotine withdrawal is not humane”.87

We do not find this observation persuasive in the present context.  First, the Taylor case involved a challenge made to regulations establishing a ban on tobacco and smoking equipment in prisons.  The comment of Brewer J was made when he was determining  the vires  of the regulations.   The  reference  to  “humane”  was  to  a requirement  in the Corrections Act that  sentences be administered  in a humane way.88   The case did not involve consideration by the decision-maker on the effects and alleviation of nicotine withdrawal.   The Judge did not refer to any evidential material on which his observation was based.  Second, the discussion in Taylor did

not involve any consideration of the right under s 23(5) of NZBORA.  Finally, like

84     Taunoa v Attorney-General, above n 71, at [177] per Blanchard J. See also [80] per Elias CJ; [285] per Tipping J; and [341] per McGrath J.

85 High Court judgment, above n 3, at [74].

86 At [72].

87     Taylor v Attorney-General, above n 61, at [31].

88     Corrections Act, s 5(1)(a).

us, Asher J found Taylor to be of no assistance.89     For these reasons, we do not

consider that Brewer J’s observation assists Mr B.

Whether dignity includes the right to smoke

[73]     Mr Francois argues that the inherent dignity of the person, the “second limb” of s 23(5), includes autonomy and control over psychological integrity, and therefore includes the freedom to make lifestyle choices such as the ability to smoke.  A right to smoke is advanced, not as an absolute right, but as coming within a more general right to liberty and autonomy, itself contained within the right to be treated with

dignity.90   The ability to shape an individual identity or determine one’s own fate is

said to be an intrinsic part of human dignity. It is therefore necessary for us to determine what is involved in the right of detainees to be treated with respect for the inherent dignity of the person.

[74]     As Mr Gunn submits, it is difficult to accept dignity can include a right to all that inheres in liberty, given that the right in s 23(5) applies only to those who are deprived of their liberty.  We agree with the Attorney-General that s 23(5) must be read as a whole and expresses one important idea:  treating persons with humanity embraces respect for their dignity.  Section 23(5) closely follows the wording of art

10(1) of the International Covenant on Civil and Political Rights (ICCPR).91   During

the drafting of art 10(1) the words “and with respect for the inherent dignity of the human  person”  were  added  to  meet  a  concern  that  the  term  “humanity”  (or humanité) would not have the same meaning in various languages.92   We agree with

Mr Gunn that it is inapt to seek to divide s 23(5) into two limbs.

89 High Court judgment, above n 3, at [39].

90     An absolute right was expressly disavowed by Mr B both on appeal and in the High Court: High

Court judgment, above n 3, at [5].

91     Article 10(1) of the ICCPR provides “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.  In s 23(5) the word “human” is omitted.  The preamble to the NZBORA refers to the ICCPR so that this is to be used as an interpretive aid.

92     See Manfred Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (2nded, NP Engel, Kehl (Germany), 2005) at 244.

[75]     This approach is supported by the jurisprudence on art 10(1) in the United Nations Human Rights Committee.93     No distinction is drawn between treatment lacking in humanity and treatment not respecting inherent dignity.   Article 10 establishes a right to a minimum standard of humane treatment while detained.  This in turn involves meeting, as Manfred Nowak explains, “basic needs and human rights (food, clothing, medical care, sanitary facilities, education, work, recreation, communication, light, opportunity to move about, privacy etc)”.94

[76]     In the High Court Asher J applied the statement of Ronald Young J at first instance in Taunoa v Attorney-General that s 23(5) imposed a “positive duty” to ensure treatment “as befits a human being with compassion”.95   New Zealand cases in which s 23(5) has been successfully invoked have included failures by authorities to  provide  basic  human  necessities  such  as  sanitary  products96   or  bedding  and

clothing,97  and where there has been brutish and unnecessary use of police force.98

The excessive use of pepper spray on a person detained in a cell at a police watch house is another example.99

[77]     Neither the New Zealand nor the international jurisprudence supports the proposition  that  treatment  with  inherent  dignity  requires  that  people  who  are detained in a mental health context have the ability to smoke.  We therefore reject Mr Francois’ submission that treatment with dignity is a separate limb of s 23(5) and encompasses ideas of autonomy and control by a detained patient over their psychological integrity.   We reject the related notion that autonomy and inherent dignity includes, as Mr Francois submits, “freedom of patients to decide when and where they commit smoking”.   We consider the word “autonomy” when used to

interpret inherent dignity in s 23(5) does not equate with liberty and freedom in the

93     Jakob Th. Moeller and Alfred de Sayas United Nations Human Rights Committee Case Law

1977–2008: A Handbook (NP Engel, Kehl (Germany), 2009); and Nowak, above n 92.

94     Nowak, above n 92, at 250.  See also Wilson v The Philippines Communication No. 868/1999, CCPR/C/79/D/868/1999 (11 November 2003); and Gorji-Dinka v Cameroon Communication No. 1134/2002, CCPR/C/83/D/1134/2002 (10 May 2005).

95     Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) at [273] and [275]. The idea of this

“positive duty” was supported in the Supreme Court: Taunoa v Attorney-General, above n 71, at

[7] per Elias CJ and [294] per Tipping J.

96     Attorney-General v Udompun [2005] 3 NZLR 204 (CA).

97     Taunoa v Attorney-General, above n 95.

98     Archbold v Attorney-General [2003] NZAR 563 (HC).

99     Falwasser v Attorney-General [2010] NZAR 445 (HC) at [76].

sense contended for by Mr Francois for Mr B.  When inherent dignity is interpreted in  its  proper  context  it  involves  certain  rights  of  persons  held  in  detention. Detainees, including patients held in ICUs are to be treated with respect for their inherent dignity, subject to any necessary and inevitable limitations on their freedom. The content of their right in s 23(5) does not include an unbounded freedom to do as

they please.100

[78]     This  approach  is  supported  by  overseas  case  law.    In  R  v  Denison  the Supreme Court of British Columbia found smoking not to be an activity connected to the dignity of the person.101   The applicant sought a constitutional exemption to the policy prohibiting smoking in the courthouse claiming a breach of his Charter right under s 7.   He said the policy violated his “psychological integrity”.102    Wilson J considered  the  observations  of  La  Forest J  in  the  Canadian  Supreme  Court  in Godbaut v Longueil (City) where it was stated:103

The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference.

…

I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs.

…

Rather,  as  I  see  it,  the  autonomy  protected  by  the  s 7  right  to  liberty encompasses only those matters that can properly be characterised as fundamentally or inherently personal such that, by their very nature, they implicate  basic  choices  going  to  the  core  of  what  it  means  to  enjoy individual dignity and independence.

100   See Law v Canada [1991] 1 SCR 497; Ferreira v Levin 1996 (1) SA 984 (CC), 1996 (1) BCLR

1 at [49]; Jeremy Waldron Dignity, Rank and Rights (Oxford University Press, New York, 2012);
and Aharon Barak The Judge in a Democracy (Princeton University Press, New Jersey, 2006) at
86–87, cited by Thomas J in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [177]–

[182].

101    R v Denison (1990) 70 WCB (2d) 758 (BCSC). The case was decided under s 7 of the Canadian Charter of Rights and Freedoms which protects the right to life, liberty and security of the person.

102 At [6].

103   Godbaut v Longueil (City) (1997) 3 SCR 844 at 893.

[79]     In determining the scope of the right of liberty under s 7, Wilson J held that smoking  “is  not  a  ‘basic  choice  going  to  the  core  of  what  it  means  to  enjoy individual dignity and independence’ … it is rather a matter of life-style choice”.104

Thus there was no violation of the applicant’s psychological integrity.

[80]     We conclude that Asher J was correct to find the Smoke-free Policy was not in breach of s 23(5) of NZBORA.  Patients in mental health units, although unable to smoke, are provided with alternative therapies, and treated “as befits a human being with compassion”.   The denial of the ability to smoke while in the ICUs is not something that affects their inherent dignity, nor does it affect Mr B’s ability to develop as a human being.  Being unable to smoke does not deprive him of his right to be treated with humanity. This ground of appeal therefore fails.

Ground six — discrimination under s 19(1)

The rule said to discriminate

[81]     Mr B alleges the Smoke-free Policy discriminates against psychiatric patients detailed in an ICU on the grounds of “acuity of illness”.  Mr Francois submits there is “intra grounds discrimination” in breach of s 19 of the NZBOR Act.  He contends this group of patients is forced to quit smoking and experience the burden of withdrawal, whereas the psychiatric patients who are less acutely unwell in the open ward (the comparator group) are entitled to smoke cigarettes.  Mr Francois submits Asher J wrongly found that psychiatric patients are confined in the ICU not because of their psychiatric illness but because of their behaviour.  It is the acuity (extent or degree) of a patient’s psychiatric illness that causes them to behave as they do and results in their confinement in ICU.

[82]     The question for determination is whether this difference is discriminatory. A convenient starting point is to identify the precise rule said to discriminate.  In this case it is the ban on smoking imposed by the WDHB on all its hospital sites.  The rule  applies  to  all  individuals  on  all  premises  including  patients,  staff,  visitors,

customers, contractors and volunteers.  No smoking is permitted by anyone inside

104   Denison, above n 101, at [42].

WDHB buildings, vehicles and offices.  The rule also applies to all external areas on

WDHB sites.

[83]     The rule is general and is not directed at any particular group;   rather it is directed at the phenomenon of smoking.  The rule does not include any reference to the characteristics of the persons to whom it applies:  it covers everyone on a WDHB site.  There is no question it has a negative impact on those who would like to smoke on a WDHB site.  We agree with the Attorney-General that the trait of desiring to smoke is not a prohibited ground of discrimination.  Nor is it suggested the trait of a

person wanting to smoke is a “disability”.105   What must therefore be established by

Mr B is that there is differential treatment between two  analogous  groups on a prohibited ground of discrimination.

The test for discrimination

[84]     There is no dispute as to the correct test.  This Court in Ministry of Health v

Atkinson described the approach to s 19(1) as a two step process:106

[T]he  first  step  in  the  analysis  under  s 19  is  to  ask  whether  there  is differential treatment or effects as between persons or groups in analogous or comparable situations on the basis of a prohibited ground of discrimination. The second step is directed to whether that treatment has a discriminatory impact.

[85]     In Air New Zealand Ltd v McAlister, Tipping J said:107

… the most natural and appropriate comparator is likely to be a person in exactly the same circumstances as the complainant but without the feature which is said to have been the prohibited ground.

[86]     Asher J followed this approach. First he identified the relevant characteristics of the claimant group being those detained in the ICU because “their behaviour is a danger to themselves or others”.108     He then compared that group with those “in

analogous or comparable situations”. This group comprised those in the ICU for any

105   This was rejected in the High Court and Asher J’s findings are not challenged on appeal.

106   Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55]. The test was confirmed by the Court of Appeal in Child Poverty Action Group Inc v Attorney-General [2013] NZCA 402, [2013] 3 NZLR 729 at [43].

107   Air New Zealand Ltd v McAlister [2008] NZCA 264, [2008] 3 NZLR 794 at [52].

108 High Court judgment, above n 3, at [57]. Applying Quilter  v  Attorney-General  [1998]

1 NZLR523 (CA) at 527.

other reason such as staff or those with other forms of disability, not necessarily psychiatric.109  Two conclusions followed:

(a)      Mr B (and his group) were in the ICU because of safety concerns not disability per se.  Their differential treatment was not on the basis of disability at all.  It was thus not on the basis of a prohibited ground of discrimination as the Atkinson test requires.

(b)All persons in the ICU were treated the same, whatever their reasons for being there.110     This conclusion reflected the application of the “groups in analogous or comparable situations” test in Atkinson.

The comparator group

[87]     The claim on appeal is one of indirect discrimination.  That is, the Smoke- free Policy is not on its face discriminatory but is said to have the effect of treating a person such as Mr B differently on the grounds of the acuity of his psychiatric illness.   As a result of a different clinical judgment based on the extent of their illness, psychiatric patients may be in an open ward and have the possibility of leaving the WDHB site to smoke.  The appropriate comparator group is said to be these patients in the open ward, and the difference in treatment between these two groups of patients is said to be discriminatory.  This is because the distinction rests on a prohibited ground, namely, psychiatric illness of a degree justifying detention in an ICU rather than in an open ward.

[88]     Mr Francois submits this amounts to “intra-ground discrimination”:  treating psychiatric patients differently according to whether the illness manifests itself in a danger to themselves or others (resulting in confinement in an ICU), or whether it does not.   We do not consider the nomenclature of “intra-ground discrimination” used by Mr Francois assists the analysis.  The term is not used in the NZBORA or the Human Rights Act 1993.  Nor is it a term of art in the academic literature.  It is

sometimes  used  to  describe  a  situation  where,  say,  blind  persons  are  treated

109 High Court judgment, above n 3, at [58].

110 At [60].

differently from deaf persons.111   Both groups share a protected “ground”, disability,

but this manifests in different forms.

[89]     The Attorney-General accepts that in principle there may exist a category of intra-ground discrimination.   This could occur, for example, where there is a distinction arising from a rule about age.  It could not be on the ground of “having an age” — because everyone has an age — but rather on the basis of having reached a particular age, compared to a younger or older comparator age.  The distinction will be within (or intra) the ground of age.  Thus, at the level of principle, it could be postulated that patients with a certain type, or level, of psychiatric illness are differentiated (by some policy or rule) from those with a different type or level.

Different treatment on a prohibited ground of discrimination?

[90]     We accept the Mr Gunn’s submission that such “intra-ground discrimination” did not occur here.  The Smoke-free Policy is a general policy, applying to persons of all types, on all its premises and grounds.   Mr Francois says this rule has the indirect effect of treating patients in the ICU differently on the grounds of acuity of psychiatric illness.   However, Asher J found the policy does no such thing.   The impact of the Smoke-free Policy does not turn on “acuity”.  Rather, acuity is simply the label that Mr Francois has used to identify the factor that determines whether a psychiatric patient is detained in ICU, as opposed to being permitted to remain in the open ward with the possibility of approved leave to visit the hospital boundary — assessment of risk to self or others.   We agree with Mr Gunn that this is quite different  from  possessing  a  characteristic  that  is  a  prohibited  ground  in  some different  way to,  or  greater or lesser measure  than, others  possessing the same characteristic.

[91]     Mr B himself was, on three occasions, detained by operation of law and clinical  assessment.112    He  makes  no  challenge  to  his  legal  status  under  the MHCAT Act  or  any  of  the  clinical  assessments  made  on  the  occasion  of  such

detentions.   Moreover,  Mr B does not  challenge any of the statutory provisions

111   Andrew  and  Petra  Butler  The  New  Zealand  Bill  of  Rights  Act:  A  Commentary  (2nd  ed, LexisNexis, Wellington, 2015) at [17.16.1].

112 Details of which are set out at [5] above.

themselves (or the duty of doctors generally to assess mental health patients and determine the appropriateness of detention).  The result is the WDHB was obliged to act in accordance with those legitimate statutory instructions and the clinicians required to act in accordance with their duties.

[92]     Mr Francois submits, however, that if the High Court is correct, the result is the WDHB is “legally entitled to use the ICU as a way of punishing patients for their behaviour”.   We do not accept that placement in an ICU because of a patient’s behaviour means that the ICU is used as a form of punishment.  The facts of Mr B’s detention are, as Dr Patton deposes, that on the first occasion Mr B became agitated and abusive and on the second he was physically threatening.   We agree with the conclusion of Asher J that it is the symptoms of the relevant psychiatric illness and the resulting risk to the safety of themselves and others that led to the “effective

detention” of patients, and behaviour is not a prohibited ground of discrimination.113

[93]     Mr Gunn referred us in this context to the case of Purvis v New South Wales in the High Court of Australia.114    It concerned a disabled schoolboy expelled from school for violence.   The issue was whether he was disadvantaged because of his disability.  The boy suffered from a disability that manifested itself in violence.  He was expelled because of that violence.  The majority dismissed the boy’s claim of discrimination, holding that the cause of his exclusion was his behaviour and not the underlying  disability.115      A boy  exhibiting  the  same  behaviour  but  without  the disability would have been treated the same way.   The minority noted that the definition  of  disability  in  the  relevant  legislation  was  expressed  in  terms  that expressly included  “behaviour”  associated  with  a disability,  that  the  comparator ought to have been a boy with neither the violence nor the disability, and that there ought to have been accommodations by the school that took the boy’s disability into

account.

[94]     Two relevant points emerge from Purvis.  The first relates to the selection of the comparator group.   It is not having a psychiatric illness per se that leads to

113 High Court judgment, above n 3, at [57].

114   Pervis v New South Wales (2003) 217 CLR 92.

115   The majority judgment comprised Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ.

McHugh and Kirby JJ dissented.

detention in an ICU and hence the inability to smoke.  It is a question of individual assessment for safety risk, both to the patient and others.   Second, the prohibited ground  of  psychiatric  illness  in  s 21(1)(h)(iii)  of  the  Human  Rights Act  is  not expressed in a way that includes resultant behaviour as part of the ground.   This means that the statutory scheme in New Zealand is lacking the feature relied upon by the minority in Purvis. Under s 4(1) of the Disability Discrimination Act 1992 (Cth) disability includes a disorder or illness that “results in disturbed behaviour”.

[95]     Mr B, and other patients like him, were placed in the ICU because they had been assessed as being a safety risk, not because of a prohibited ground.  Once such patients were in the ICU they were treated in exactly the same way as all others in an ICU.   The basis of the prohibition on smoking was not because Mr B and others were psychiatric patients in the hospital generally or in the ICU.  It is as Asher J said: “simply  because  they,  like  any  visitors  to  the  WDHB’s  premises,  are  on  the hospital’s grounds and must observe its rules insofar as those rules do not impinge

on protected rights”.116

[96]     We are satisfied the smoking ban implemented by the Smoke-free Policy involved a neutral rule with no particularised effect on psychiatric patients.   The impact on that group flowed from the independent operation of a further (and legitimate) policy premised on the safety of the detained person and others whom they might otherwise harm.  It was that rule that resulted in their detention in ICU. The patients were then treated in exactly the same way as all others required, for any reason (for example, as staff or having non-psychiatric disability), to be in ICU. There was no differential treatment by reason of having a psychiatric illness, even one that manifested itself in there being potential harm to themselves or others.  The detention arose out of the appropriate operation of the treatment regime for compulsorily detained patients.  Accordingly there was no different treatment on a

prohibited ground.

116 High Court judgment, above n 3, at [60].

Conclusions on s 19(1)

[97]     We therefore agree with the Attorney-General that the choice of comparator group submitted by Mr Francois is problematic.   He draws a comparison between smokers (with psychiatric illness) in the ICU unit and smokers (with psychiatric illness) in the open ward, some of whom are at liberty to reach the hospital boundary and smoke outside it.  Mr Francois seeks to import the characteristic of smoking into the comparison.  This approach assumes the WDHB must respect smokers’ freedom to  smoke.    We  disagree.   As Asher J  said,  speaking  of  Ms  Steele  (one  of  the

claimants in the High Court):117

[She] could not smoke during the night shift that she worked when she was at the unit.  But nor could she drink or listen to loud music.  She was not being discriminated against because of an addiction.  She was being treated like any other employee, patient or visitor.  If she had been prohibited from smoking in the hospital’s precincts due to a prohibited ground, that would be another matter;  but the WDHB’s lawful policy prohibiting smoking does not make distinctions on any such ground.

[98]     Although Mr Francois expressly disavowed that Mr B was claiming a right to smoke, the reality is to the contrary.  In this sense smoking is no different to alcohol consumption or accessing pornography in a hospital setting.   The WDHB has no obligation to make smoking available to those who cannot exercise the privilege otherwise.   Those confined within the ICU are required to comply with the rules, including general rules applicable to all persons throughout the WDHB premises and

grounds.118

[99]     We conclude that Asher J made no error in his analysis of, or conclusions about, s 19 of NZBORA.  We agree with the Attorney-General it is not necessary to consider whether any material disadvantage was caused to  Mr B, as he has not established that he was treated differently on a prohibited ground.  Even if we are wrong in our conclusions about s 19 and if material damage were caused to Mr B, there would still remain the question as to whether s 5 applies, a matter that we address briefly in ground eight.  For the reasons given, this sixth ground of appeal

fails.

117 High Court judgment, above n 3, at [61].

118   A similar proposition was endorsed by the majority of the Court of Appeal in R(N) v Secretary of

State, above n 51, at [44].

Ground seven — s 28 — interference with private life

[100]   Section 28 of NZBORA provides that an existing right or freedom shall not be held to be abrogated or restricted by reason only that it is not included in the NZBORA.    Mr B  claims  that  “the  right  to  home  life  exists  in  New  Zealand”, although not mentioned in NZBORA, and can therefore be protected by the courts by virtue of s 28.  This submission was summarily rejected by Asher J who found that “in the context of a hospital environment, those who are in that environment

have to accept limitations on their privacy and their ability to do what they want”.119

We agree.

[101]   We are satisfied that in New Zealand there is no universal right to private life that includes a right to make personal choices such as whether or not to smoke. Mr Francois cited no authority to support the submission that such a right pre-existed the enactment of the NZBORA.   And that legislation enshrines no such right or freedom.   What s 28 does is preclude an argument that the non-inclusion of an existing right or freedom in the NZBORA means that such right or freedom is abrogated or restricted on account of the non-exclusion.

[102]   Section  28  plainly  recognises  there  may  well  be  rights  or  freedoms  not included in the NZBORA.  Such recognition does not elevate those other rights or freedoms (of whatever kind) to the level of rights affirmed by the NZBORA.  More importantly, s 28 does not obviate the need for a person claiming a common law right or freedom to establish the existence of such right or freedom by reference to principle or authority.

[103]   The way in which s 28 was intended to operate is demonstrated by the case law.   For example in R v Allen the High Court recognised that there was in the common law a pre-trial and pre-charge right of silence that could co-exist with the rights to silence explicitly affirmed in NZBORA arising on detention under s 23(4)

or at trial under s 25(d).120     This involved the recognition of the existence of a

positive right to be found in common law precedent.

119 High Court judgment, above n 3, at [76].

120   R v Allen HC Rotorua CRI-2007-087-1729 at [23]–[24].

[104]   Another  example  is  M  (CA587/11) v  Minister  of  Immigration  where  the question in an immigration case was whether there was a common law right to “family life”.121   In rejecting that such a right existed, this Court said:122

… the domestic law of New Zealand does not recognise a right to family life in the sense contended for by M.  No doubt family life is regarded by many as an important value in a general sense.   The international human rights instruments support the value of the family and the protection of it from arbitrary interference.   We accept too that the value of family life may be recognised in particular statutory settings.  …

[105]   The case illustrates the principle that in a case where a party claims that there is a relevant right that is not in the NZBORA, such right must be demonstrated to exist in fact.  No such right was established.  In Bull v Utumapu a pre-existing right existed.123

[106]   Here, Mr Francois has been unable to refer to any principle or authority that establishes a pre-existing right to home life.  Although he cites Hemmes v Young, we agree with Mr Gunn that the case does not establish that “s 28 recognises that New Zealand legislation should be read consistently with New Zealand’s international obligations”.124   Whilst the judgment of Hammond J, one of the two-judge majority, refers to the text of s 28, the next paragraph moves to the different and uncontentious point that New Zealand legislation should, so far as its wording allows, be read consistently with New Zealand’s international obligations.125    The s 28 point is not taken further, nor applied.  Rather, the ICCPR was taken to include a principle that distinguishing   between   adoptees   and   non-adoptees   (when   considering   the availability of proceedings to establish paternity) was discriminatory.126

[107]   We conclude that Mr B has shown no error on the part of Asher J in respect of his claim of interference with private or home life.  No such pre-existing right has been established, let alone that such right (if it existed) included the right to smoke

when in a hospital setting. This seventh ground of appeal fails.

121   M (CA587/11) v Minister of Immigration [2012] NZCA 489, [2013] 2 NZLR 1 .

122 At [20].

123   See also the approach of Thomas J (dissenting) in Brooker v Police, above n 100, at [177]–[182].

124   Hemmes v Young [2005] 2 NZLR 755 (CA).

125   At [95]–[96].

126   In fact the outcome was overruled by the Supreme Court:  Hemmes v Young [2005] NZSC 47, [2006] 2 NZLR 1.

Ground eight — a justified limitation?

[108]   In case he was wrong in his conclusions that the Smoke-free Policy did not breach any of Mr B’s NZBORA rights, Asher J went on to consider the question of justified  limitation  under s 5.   The Judge  adopted the approach  of Tipping J  in R v Hansen,127  setting out the following questions that must be asked when looking at s 5:128

(a)       Does  the  provision  serve  an  objective  sufficiently  important  to  justify limitation of the right or freedom?

(b)       If so:

(i)       Is the limit rationally connected with the objective?

(ii)      Does  the  limit  impair  the  right  or  freedom  no  more  than  is reasonably necessary for sufficient achievement of the objective?

(iii)     Is the limit in due proportion to the importance of the objective?

[109]   Asher J then said:129

Under s 5, the onus is placed on the policy-maker to demonstrate why the Smoke-free Policy is justified.   A Court must show restraint and caution when considering matters of policy.  Courts must allow the decisionmaker some degree of discretion and judgment.  The Court must keep it in mind that its purpose is to reach a decision through structured reasoning rather than an impressionistic process.   I bear in mind that DHBs are specialist bodies, controlled by elected persons, many of whom are experienced health professionals. A policy such as this, which is the result of a discernible train of rational development and consideration, and which is clearly articulated, demands respect for that process and caution from a Court that is carrying out the s 5 evaluation.  This approach does not, of course, extend so far as to abdicate any of this Court’s constitutional role in guarding New Zealand citizens’ fundamental rights.

(Footnotes omitted).

127   R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [104].

128 High Court judgment, above n 3, at [80].

129 At [81].

[110]   We agree with these observations.  In applying this methodology the courts are performing a review function.  Asher J found on the evidence that the objective of  stopping  patients  smoking  is  “for  their  own  good  and  the  good  of  other patients”.130   The Judge had before him unchallenged evidence of the damage done to  individuals  and  the  community by smoking.    Preventing  such  damage  is  an important objective of the Smoke-free Policy.   The Judge concluded this purpose

was “a sufficiently important purpose to justify a curtailment of a right or freedom”.131     It is rationally connected to the purpose of improving health.   The Judge went on to conclude that as a limiting measure the policy impairs the right or freedom no more than is reasonably necessary for the sufficient achievement of its purpose, and is proportionate.132     It was therefore of the type that could be demonstrably justified in a free and democratic society.133

[111]   The  Attorney-General  supported  the  conclusions  of  Asher J.     Mr Gunn submits the objective of preventing patients from smoking is sufficiently important to  justify  any  limitation  represented  by  the  Smoke-free  Policy  because  it  is improving health by reducing the incidence of smoking and thus preventing demonstrable harm to the patients themselves and others surrounding them.   We agree.  The Smoke-free Policy also prevents harm from second-hand smoke.  The evidence establishes an extensive list of benefits to be achieved by the smoking ban, including that it also improves safety by reducing fire risk and risk of self-harm. Plainly the Smoke-free Policy is rationally connected to the aim of improving and promoting the health of patients, staff and visitors who are on WDHB sites.   It is reasonably necessary to achieve that aim.

[112]   We conclude that the policy is proportionate to the objectives of protecting those within hospital grounds from second-hand smoke and encouraging patients (and staff) not to smoke.  The WDHB is entitled to some degree of deference in the deployment of its resources.   It is a specialist body that understands the health requirements of its patients (and staff).  It undertook a careful and considered process

of implementing the Smoke-free Policy.  Like Asher J we are satisfied the policy can

130 High Court judgment, above n 3, at [82].

131   Ibid.

132   At [83]–[89].

133 At [90].

be demonstrably justified in a free and democratic society.  This ground of appeal therefore fails.

Result

[113]   All grounds of appeal have failed. The appeal is dismissed.

[114]   All parties were agreed that costs would not be sought regardless of the outcome. There is no order as to costs.

Solicitors:

Warren Simpson & Co, Auckland for Appellant
Claro Law, Wellington for Respondent