B v Waitemata District Health Board

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000351 [2013] NZHC 1702

UNDER

the Judicature Amendment Act 1972, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908, High Court Rules and the Common Law

IN THE MATTER

of actions for judicial review and declarations

BETWEEN

B
First Applicant

JENSINA ETHEL MAE STEELE Second Applicent

AND

WAITEMATA DISTRICT HEALTH BOARD

Respondent

CIV-2012-404-005040

BETWEEN

C Applicant

AND

WAITEMATA DISTRICT HEALTH BOARD

Respondent

Hearing:	20-21 May 2013
Counsel:	RK Francois for Applicants J Coates and P Le Cren for Respondent
Judgment:	8 July 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Monday, 8 July 2013 at 10.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

B v WAITEMATA DISTRICT HEALTH BOARD [2013] NZHC 1702 [8 July 2013]

Table of Contents

Para No

Introduction  [1] The applicants  [10] Judicial review  [15] The WDHB’s powers and policy  [17] New Zealand Public Health and Disability Act 2000  [19] Smoke-free Environments Act 1990  [33] Relevant and irrelevant considerations  [41] Irrationality      [46] Consultation  [47] Legitimate expectation  [51] Breach of rights  [52] Discrimination on the ground of psychiatric illness  [56] Discrimination on the ground of disability  [64] Right not to be subjected to torture or cruel treatment  [70]

Right to be treated with humanity and with respect for the inherent

dignity of the person  [73] Right to respect private life  [75] Right to natural justice  [77] Section 5          [79] Summary of findings  [91] Result  [96] Costs                [97]

Introduction

[1]      In these proceedings, the applicants challenge the policy of the respondent to prohibit smoking in its hospitals and surrounding grounds.   It is argued that the policy  is  illegal  because  it  is  inconsistent  with  the  respondent’s  controlling legislation and the New Zealand Bill of Rights Act 1990.

[2]      These are consolidated proceedings involving three applicants.  Two of the applicants, Mr B and Ms C, have been psychiatric patients at North Shore Hospital in Auckland which is run by the respondent, Waitemata District Health Board (the WDHB).   The other applicant, Jensina Ethel Mae Steele, is a former psychiatric nurse at Waitakere Hospital, also operated by the WDHB.   By consent I have suppressed publication of the names of all patients including the applicants.

[3]      The policy that is the object of the proceedings was not specifically defined in the pleadings, but was confirmed by Mr Francois for the applicants to be the

Waitemata District Health Board Smoke-free Environment Policy dated November

2009 (the Smoke-free Policy).

[4]      The Smoke-free Policy records  various  introductory matters and  that  the WDHB is required to ensure that employees, patients and members of the public are protected from tobacco smoke in the workplace.  It also states that the WDHB has a responsibility to encourage and support patients and staff not to smoke.  All WDHB sites are smoke-free.  No smoking is permitted inside WDHB buildings, vehicles or offices, and staff, patients and visitors may not smoke in external areas on any site owned by WDHB or controlled by them…