B v Waitemata District Health Board

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA524/2013 [2016] NZCA 184

BETWEEN

B

Appellant

AND

WAITEMATA DISTRICT HEALTH BOARD

Respondent

Hearing: 1 March 2016

Court:

Stevens, Cooper and Kós JJ

Counsel:

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

Judgment:

11 May 2016 at 11.30 am

JUDGMENT OF THE COURT

A     The appeal is dismissed.

B      There is no order as to costs.

REASONS OF THE COURT

(Given by Stevens J)

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

Table of Contents

Para No

Introduction  [1] Background    [5] The appellant      [5] WDHB mental health units   [7] Development of the Smoke-free Policy   [9] The Smoke-free Policy  [13] High Court judgment  [14] Judicial review  [14] Breach of rights  [19] Issues on appeal   [22] Ground one — lawfulness of the WDHB’s actions  [23] Crown Entities Act — ulterior purpose  [23] Powers and objectives of DHBs  [26] Ground two — relevant considerations  [42] Ground three — legitimate expectation and consultation  [46] Legitimate expectation  [46] Consultation  [56] Summary of conclusions on judicial review  [58] Ground four — s 9 NZBORA  [61] Ground five — s 23(5) of NZBORA  [68] Inhumane treatment  [70] Whether dignity includes the right to smoke  [73] Ground six — discrimination under s 19(1)  [81] The rule said to discriminate  [81] The test for discrimination  [84] The comparator group  [87] Different treatment on a prohibited ground of discrimination?  [90] Conclusions on s 19(1)  [97] Ground seven — s 28 — interference with private life   [100] Ground eight — a justified limitation?   [108] Result    [113]

Introduction

[1]      When the Rt Hon Helen Clark introduced the Smoke-Free Environments Bill into Parliament in May 1990, she spoke of the Bill being “one of the major planks in a strategy aimed at achieving a smoke-free generation in New Zealand”.1    Nearly two decades later in November 2009 the Waitemata District Health Board (WDHB), following  extensive  consultation,  fully  implemented  its  Smokefree  Environment

Policy (the Smoke-free Policy).   As a result, no smoking is permitted inside any

1      (17 May 1990) 507 NZPD 1634.

buildings, vehicles or offices owned or leased by the WDHB.  In addition, no staff, patients  or  visitors  may  smoke  in  external  areas  on  any WDHB  site.   Anyone wanting  to  smoke  must  leave  the  grounds.    Importantly the  Smoke-free  Policy provides that WDHB staff will assess patients on arrival and be proactive in offering them  support  to  quit  smoking.    Smokers  are  prescribed  nicotine  replacement products and are referred to a smoking cessation service.

[2]      The impact of the Smoke-free Policy is said to be challenging for psychiatric patients who are compelled to be in secure units from which they may not leave and who are therefore effectively forced not to smoke.  The appellant, Mr B, was such a patient  some  time ago.…

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Details
Case
[2016] NZCA 184
Decision Date

CaseChat Overview and Summary

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

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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