Patients admitted to intensive care units (ICU) in the board’s mental health facilities were confined to the unit over the course of their admission so therefore are unable to smoke.

The appellant, Mr B, was an inpatient at the board’s two acute adult inpatient mental health units over a 12-week period in 2012.

During this time, he was admitted to the ICU on three occasions for a total of about 11 days. While in the ICU, the appellant was confined to the unit and unable to smoke.

The appellant who challenged the ban, known as “Mr B”, was a former patient at the WDHB and involved with the mental health unit for nine months.

A long-time smoker who reported smoking around 15 cigarettes per day, he said he liked to smoke because it was calming and helped him to relax.

He wanted to challenge the smoke-free policy because when he was forced to stop smoking, he claimed it made him uptight and felt part of his freedom was taken away from him.

Mr B challenged the board’s smoke-free policy in the High Court and Court of Appeal by claiming the policy was inconsistent with legislation controlling the board and with the New Zealand Bill of Rights Act 1990.

The claim was unsuccessful in both the High Court and the Court of Appeal.

In the Supreme Court, the appellant claimed the Board was obliged under the Smoke-free Environments Act 1990 to establish dedicated smoking rooms in mental health units.

He also claimed that the board’s smoke-free policy had breached his rights under the Bill of Rights Act, specifically the right to be treated with humanity and with respect for dignity; the right not to be subjected to cruel or disproportionately severe treatment; the right to be free from discrimination on the basis of disability; and the right to a home or private life, which the appellant argued exists at common law and included a
right to choose to smoke.

The court found the Smoke-free Environments Act did not create any obligation on the board to provide dedicated smoking rooms in its mental health units. The act allowed for dedicated smoking rooms but did not include an obligation to provide one.

The court also found the board’s smoking policy was not inconsistent with the Bill of Rights because the way in which the policy was implemented, following a careful process and with the provision of nicotine replacement therapy, meant that the policy did not
breach any rights.

In addition, the policy did not breach the right to be free from discrimination on the basis of disability because the patient was treated in the same way as all others required to be in the ICU.

Finally, the Court found that there was no existing right to home or private life encompassing the right to choose to smoke while confined for short periods in the ICU of a mental health institution.

The article was first published in fellow NZME publication, the New Zealand Herald.