The Supreme Court has upheld(1) a ban on smoking in public mental health facilities, ruling that the ban did not breach patients' rights, even of those compulsorily detained on the property.

Background

The appellant, B, was an in-patient at the Waitemata District Health Board's acute adult in-patient units over a 12-week period in 2012. The health board had a smoke-free policy, under which smoking was not permitted anywhere on its premises. As an in-patient, B was mostly in the open ward and could leave the site to smoke between 9:00am and 9:00pm. However, he had also spent a total of 11 days in the intensive care unit of the in-patient unit. Patients in the intensive care unit are held under the Mental Health (Compulsory Assessment and Treatment) Act and cannot leave. B had spent two additional days in a general hospital for a separate medical condition. He was prohibited from
smoking in both the intensive care unit and the general hospital.

B challenged the smoke-free policy, claiming that the health board was obliged, under the relevant legislation, to establish dedicated smoking rooms in its institutions, and that the smoking ban breached his rights under the Bill of Rights Act. He was unsuccessful in the High Court(2) and the Court of Appeal,(3) and appealed to the final court of appeal, the Supreme Court.

Supreme Court decision

The Supreme Court ruled that there was no requirement under the Smoke-free Environments Act 1990 to provide a dedicated smoking room. Section 6 of the act, on which B had relied to establish such an obligation, uses permissive language and provides that "an employer may permit smoking by patients or residents" in a dedicated smoking room. While in some contexts 'may' could mean 'must', here it was to be read consistently with its plain meaning, which was to permit or empower, not to oblige.

The Supreme Court also rejected the appellant's claim that the smoking prohibition infringed a number of rights under the Bill of Rights Act, including as follows:

• The right of persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the person.(4)
• The right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment.(5)
• The right to freedom from discrimination, including on the grounds of disability.(6)
• The right to a home or private life (a right not specifically protected by the Bill of Rights Act, but also not excluded by it).

The court found the first of these to be the strongest potential claim. It acknowledged that the relationship between mental health and smoking was complex, and considered the question at issue to be whether the health board had treated its patients in the intensive care unit (who were compulsorily detained) with humanity and respect for their dignity, given their vulnerability and the impact of nicotine withdrawal. The court affirmed that it had.

The court had placed particular weight on the fact that the health board's smoke-free policy was proactive in offering support to patients quitting smoking, and included the provision of nicotine replacement therapy. The court considered B's evidence that nicotine replacement therapy did not effectively reduce his cravings, as well as expert evidence which suggested that this treatment has a limited effect on the quitting rates of those not motivated to quit.

However, the court placed greater emphasis on evidence from the health board which suggested that, while no simple solution existed for withdrawal symptoms, nicotine replacement therapy was effective in reducing those symptoms and it was primarily for this reason (the support of temporary abstinence and the assistance with symptom withdrawal, rather than long-term cessation) that it was being used. The court concluded that the careful implementation of the smoke-free policy, including the provision for nicotine replacement therapy for those who needed it, meant that the policy did not breach the right to be treated with humanity and respect for inherent dignity.

Other relevant factors included:

• B's relatively short stays in the intensive care unit;
• policy considerations relating to smoking in mental health institutions (eg, fire hazards, the risk of self-harm and the need for increased staff supervision); and
• the health board's obligation to protect others (eg, staff and non-smoking patients) from the effects of second-hand smoke.

For the same reasons, and in particular the provision of nicotine replacement therapy to patients,the court held that the ban did not meet the high threshold for breach of the right not to be subjected to cruel, degrading or disproportionately severe treatment or punishment; nor was the ban a breach of the right to freedom from discrimination against disability (defined by the Human Rights Act to include psychiatric illness).

The court rejected the proposition that smokers with psychiatric illness in the intensive care unit were discriminated against when compared to those on the open ward (some of whom could smoke outside the hospital premises). It agreed with the lower courts that such a comparison effectively claimed a right to smoke. There was no obligation on the health board to make smoking available to those who could not otherwise exercise the privilege. Patients in the intensive care unit were there because of the independent operation of a different and legitimate policy regarding the safety of those patients and those they might harm. Once in the intensive care unit, patients and others (eg, staff and visitors) were treated equally as regards smoking. Put another way, B was detained because of a disability, but was not discriminated against on that basis. Rather, a policy which applied to everyone in the hospital (regarding smoking) also applied to him while he was there.

Finally, the court considered the complaint of breach of a right to home or private life. The Bill of Rights Act does not include a right to a home or private life. In order to establish the breach of such a right, B would have needed to show that such a right was nevertheless recognised by law, and therefore protected by the savings provision in Section 28 of the Bill of Rights Act, which provides that existing rights are not abrogated simply by reason that they were not included in the act. However, the court considered that it was unnecessary in this case to decide on whether there was a right to a home or private life in New Zealand because, however such a right might be construed, it would not include the right to smoke in an intensive care unit in which the patient had been lawfully placed. The court considered that B's situation, namely short periods in the intensive care unit, was too removed from the sphere of personal autonomy to warrant protection.

The court referred to McCann v The State Hospitals Board for Scotland,(7) in which the UK Supreme Court held that a comprehensive smoking ban (accompanied by a prohibition on the possession of tobacco products and procedures for the search and seizure of such products) breached the right(8) to respect for private and family life and home, but that the breach was justified.(9) In the present case, the Supreme Court noted that, in contrast to McCann, the only times at which B was unable to smoke at all were during his relatively short periods in the intensive care unit and the general hospital. Further, the court had had the benefit of evidence as to both the positive effects of even short-term cessation of smoking as well as on the harm caused by smoking in mental health facilities and on the benefit of nicotine replacement therapy, which did not appear to have been available to the UK Supreme Court in McCann. The court concluded that, even if there had been a breach of a right to a home or private life, it would have been a reasonable and proportionate one, and therefore a justified limit under the Bill of Rights Act.

Comment

The decision is a relatively straightforward example of statutory interpretation and rights analysis under the Bill of Rights Act. The treatment of the health board's smoking ban by the courts has differed from that of a similar prohibition on smoking in prisons. That ban was the subject of two successful challenges in the High Court: the first on the grounds that the prison rules setting out the ban were unlawful; and the second on the ground that subsequent regulations that intended to achieve the same purpose as the rules were also unlawful.(10)

As in the lower courts, the Supreme Court's views in relation to the statutory interpretation and rights questions were shaped by the statutory context in which the health board operated, in particular its paternalistic objectives in relation to the care, support and health of patients and people in the community. The health board's health-focused objectives, combined with its provision of nicotine replacement therapy and other health support to patients subject to the smoking ban, were central to the court's finding that there was no breach of the right of patients deprived of liberty to be treated with humanity and respect for the inherent dignity of persons. The court contrasted the statutory context before the High Court in the prison cases, which were concerned with a requirement in the Corrections Act that sentences be administered in a humane way (and which found that forcing prisoners into nicotine withdrawal was inhumane). Whereas the position of compulsorily detained patients might not appear to differ much from that of prisoners, the court found that the statutory context, aimed at the support and wellbeing of patients rather than at the detention and removal of liberty and other limited rights of prisoners, rendered the smoking ban in the health context consistent with patient rights, adding that it had also had the benefit of evidence
regarding nicotine replacement therapy (in contrast to the courts that heard the prison cases).

Endnotes

(1) B v Waitemata District Health Board [2017] NZSC 88.
(2) B v Waitemata District Health Board (NZHC 1702/2013) discussed in "High Court upholds smoking ban for hospitals, but not for prisons" July 30 2012.
(3) B v Waitemata District Health Board (NZCA 184/2016) discussed in "Court of Appeal upholds Waitemata District Health Board smoking ban" July 12 2016.
(4) Protected by Section 23(5) of the Bill of Rights Act.
(5) Protected by Section 9 of the Bill of Rights Act.
(6) Protected by Section 19(1) of the Bill of Rights Act, together with Section 21(1) of the Human Rights Act 1993.
(7) 2017 UKSC 31.
(8) Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
(9) The ban in that case was nevertheless held to be unlawful, but on a different ground; namely, the hospital board had mistakenly considered itself to be acting under the incorrect act and therefore failed to comply with certain requirements under the relevant act.
(10) For further details, please see "Prison smoking ban prompts judicial intervention and raises constitutional concerns".