Argument: Right to Privacy

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B v. Waitemata District Health Board [New Zealand] [June 14, 2017]

A patient at a mental health facility sued the Waitemata District Health Board claiming that the Board’s smoke-free policy violated the Smoke-free Environments Act because it did not provide a smoking room for patients. The patient also claimed that the smoke-free policy violated his right to be treated with respect for dignity. In two earlier decisions, the High Court and the Court of Appeals found the smoke-free policy did not violate either the Smoke-free Environments Act or the Bill of Rights. The patient appealed the decision to the Supreme Court.

In this decision, the Supreme Court upheld the smoke-free policy. The Court found that the smoke-free policy did not violate the Smoke-free Environments Act because the law states that a smoking room “may” be provided. As a result, the Board is not required to provide a smoking room for patients. Further, the Supreme Court found the patient’s rights were not violated because smokers were given nicotine replacement therapy, which was a humane and meaningful treatment for nicotine withdrawal symptoms, consistent with the Bill of Rights. 

British American Tobacco Ltd v. Ministry of Health [Kenya] [February 17, 2017]

British American Tobacco appealed a 2016 court decision, which upheld nearly all elements of Kenya’s Tobacco Control Regulations. The appeals court ruled that the tobacco company’s appeal had no merit and affirmed the decision of the lower court. The earlier ruling upheld nearly all elements of the Regulations, which are designed to implement the Tobacco Control Act, including:

- a 2% annual contribution by the tobacco industry to help fund tobacco control education, research, and cessation;
- graphic health warnings;
- ingredient disclosure;
- smoke-free environments in streets, walkways, verandas adjacent to public places and in private vehicles where children are present;
- disclosure of annual tobacco sales and other industry disclosures; and
- regulations limiting interaction between the tobacco industry and public health officials.

The appeals court agreed with the lower court that the tobacco company had been given adequate opportunities for participation in the development of the regulations and that the regulations do not violate the tobacco company’s constitutional rights. 

Charles McCann v. State Hospital Board of Scotland [United Kingdom] [August 12, 2014]

The Hospital Board decided to prohibit smoking and the possession of tobacco on the ground of a government-run hospital.  The lower court ruled that the decision was unlawful in regards to the plaintiff, because it violated his right to private and family life, discriminated against him, and did not conform with the principles of the Mental Health Care Act. In this decision, the appeals court reversed the lower court judgment. The appeals court ruled that the hospital had the authority to prohibit smoking, and the decision did not violate the provisions of the European Convention on Human Rights. 

B v. Waitemata District Health Board [New Zealand] [July 08, 2013]

Two psychiatric patients and a nurse brought these proceedings against the Waitemata District Health Board (WDHB) challenging its Smoke-free Environment Policy which prohibited smoking in hospitals and surrounding grounds. The two patients were held in hospital under the Mental Health (Compulsory Assessment and Treatment) Act and were therefore unable to leave the hospital to smoke. The nurse was unable to leave the ward during her shift and was therefore unable to smoke during working hours. The applicants challenged the policy on traditional grounds of judicial review: illegality (including a failure to take into account relevant considerations); irrationality; and a breach of natural justice. They also alleged that the policy breached a number of rights under the Human Rights Act 1993 and New Zealand Bill of Rights Act 1990, including: unlawful discrimination against detained psychiatric patients compared to non-detained psychiatric patients; unlawful discrimination against smokers compared to non-smokers; unlawful discrimination on the ground of disability (because addiction to nicotine is a "disability"); the right not to be subjected to torture or cruel treatment; and the right to respect private life.

The Court rejected all of the applicants' claims and upheld the validity of the Policy. The Court found that, given that smoking is a health hazard and that District Health Boards have a duty pursuant to their governing legislation to prevent or restrict health hazards, it was entirely within the powers vested in the WDHB to have policies to stop smoking. The Court rejected the applicants' claim that the Policy should provide for smoking places because the WDHB was entitled to take into account that such areas would impose additional costs, as well as the risks to passers-by posed by passive smoking. The potential harm to employees from passive smoking was a further justification for the policy given that the Health and Safety in Employment Act 1992 requires employers to provide and maintain a safe working environment for employees.

The Court distinguished this case from the situation in the prison cases (see: Taylor v Attorney General & Ors (3 July 2013)) on the basis that the relevant section of the Smoke-free Environments Act 1990 relating to prisons assumed the existence of smoking within them; whereas, the section relating to hospitals made no such assumption.

The Court further found that there was no discrimination between detained psychiatric patients and non-detained psychiatric patients because all patients were treated alike. Further, there was no discrimination between non-smokers and smokers because nicotine addiction is not an "illness" or an "impairment" or a "disability" - while the applicants suffered some discomfort and distress, nicotine addiction is curable. Likewise, the Policy did not constitute "torture" because the withdrawal symptoms resulting from stopping smoking do not cross the relevant threshold of suffering, and the provision of NRTs to patients was humane and meaningful treatment for symptoms. The Policy also did not breach the right to respect private life contrary to the International Covenant on Civil and Political Rights because it was neither arbitrary nor unlawful, and in a hospital environment those who are in that environment have to accept limitations on their privacy.

Lastly, the Court found that, even if there had been a breach of the applicants' rights (which there had not), then the Policy was nonetheless justified because its purpose (to reduce smoking) was important in light of the damage that smoking does to persons and the community; the Policy was rationally connected to that purpose; and the Policy was proportionate and went no further than necessary to achieve its aims.

Fraternal Order of Eagles, et al. v. City and Borough of Juneau [United States] [July 01, 2011]

The City and Borough of Juneau adopted a law banning smoking in public areas, finding it necessary for the protection of the public health. Seven years later, the city amended that law to include a prohibition on smoking in "private clubs," defined as establishments that offered food or alcoholic beverages for sale. One such establishment operated by the Fraternal Order of Eagles and several of its members brought an action against the city after the organization began experiencing a decline in membership. The plaintiffs argued that the amendment to the law was unconstitutional on its face and that it violated their rights to freedom of association under the First Amendment of the United States Constitution, as well as their rights to privacy under the first article of the Alaska Constitution. A superior court found in favor of the city. On appeal, the Supreme Court of Alaska affirmed that decision, finding that the smoking ban did not violate the appellants' First Amendment rights because it only regulated the conduct of the organization's members and did not limit their liberty to associate. The Supreme Court also found that the ban did not violate the Alaska state right to privacy because the ban bore a substantial relationship to the government's interest in protecting the public health.

Flemish Anti-Cancer League, et al. v. Belgium Council of Ministers [Belgium] [March 15, 2011]

Applicants filed an action for annulment of Belgium's tobacco control legislation. The Court struck down exemptions to the law that permitted smoking in certain establishments whose principal activity was to provide drinks on site and wherein only pre-packaged food was served.  The Court found that these exceptions violated the Belgium Constitution, the Revised European Social Charter, and the European Convention on Human Rights, including the rights to equality before the law, non-discrimination, respect for private and family life, dignity, safe and healthy working conditions, and protection of health. The Court stressed the need to consider the protection of health in combination with Article 8 of the Framework Convention on Tobacco Control (FCTC) when addressing tobacco control legislation. According to the Court, the exposure to tobacco smoke could not be reasonably justified based on whether and what type of food was for purchase. The additional challenge to provisions of the legislation that allowed for designated smoking rooms was unsuccessful as the Court would not find that smoking rooms amounted to a violation of any rights.

Tabacalera del Este S.A., et al. v. Paraguay [Paraguay] [October 18, 2010]

The petitioners filed an appeal for legal protection, challenging the constitutionality of two administrative decrees that implemented Article 11 of the FCTC, providing for stronger warning and labeling requirements than the regulations in effect at the time. The petitioners claimed that the decrees had been issued in violation of several constitutional provisions, particularly those providing for separation of powers, the right to commerce, free circulation of goods and supremacy of the Constitution. The Court held that, even though the FCTC had become legally binding to Paraguay upon its ratification and entry into force, this type of regulations needed to be adopted by the Congress. Therefore, both administrative decrees were unconstitutional, as they had been issued by the executive branch in violation of the separation of powers.

R (N), et al. v. Secretary of State for Health, et al [United Kingdom] [July 24, 2009]

Smokers, who were, or had been, detained at a mental health facility, appealed a Division Court ruling in which they challenged a government regulation banning smoking in mental health facilities based on the right of privacy in the home and the right to protection against discrimination against mentally ill persons. Specifically, their argument focused on the difference between the exemptions granted to prisons versus the exemptions granted to mental health units, which were only temporary. Agreeing with the Division Court and dismissing the appeal, the Court concluded that the smokers are not protected under the European Convention on Human Rights because the smoking prohibition does not have a sufficiently adverse effect on a patient's physical or moral integrity and the "right" or "freedom to smoke" does not engage these rights under the Convention.

The Queen on the application of G, et al. v. Nottinghamshire Healthcare NHS Trust, et al. [United Kingdom] [May 20, 2008]

Three claimants, who were, or had been, detained at a mental health facility, challenged a government regulation banning smoking in mental health facilities based on the right of privacy in the home and the right to protection against discrimination against mentally ill persons. Rejecting the notion of an absolute right to smoke wherever one is living, the Court upheld the regulation, reasoning that in light of health considerations and the rights and freedoms of others, the law may place restrictions smoking without interfering with the smoker's general rights, including the right to privacy and family life.

Slatkine, et al. v. Grand Conseil of the Canton of Geneva [Switzerland] [March 28, 2007]

Ivan Slatkine and others sued the Grand Conseil of the Canton of Geneva regarding the constitutionality of a popular initiative titled “Second-hand smoke and health.”  The initiative highlights the hazards linked to second-hand smoke and the need to protect the staff of public establishments as well as the persons frequenting them.  The legislative commission of the Grand Conseil (Commission) declared the initiative to be unconstitutional in part because it sought an outright ban of smoking in all public places.  The Commission remedied the provision by carving out an exception for residential premises intended predominantly for private use.  Slatkine and others filed a constitutional complaint, asking the court to find the ban unconstitutional as it is against worker protection and personal freedom.  They also argued that the Commission’s exception was against the intent of the authors.   The Court explained that the exception did not distort the authors’ intentions because it maintained the prohibition of smoking in nearly all public places.  Further, the Court dismissed the argument that the exception is contrary to superior law or infringes on personal freedom.  Notably, the Court cited Article 8 of the World Health Organization’s Framework Convention on Tobacco Control (FCTC), which calls for smoke-free public places.  The Court stated that as soon as the Treaty was ratified, recognition of the harmful effects of tobacco smoke will constitute an international obligation for Switzerland.  The Court upheld the provision.