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.
B v. Waitemata District Health Board, SC 60/2016 [2017] NZSC 88.
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the protection against cruel and unusual punishment. For example, prisoners may claim that exposure to secondhand smoke violates this right.
A claim against an employer involving a person who is harmed by secondhand smoke exposure in the workplace. For example, an employee with asthma may sue their employer for failing to protect them from exposure to secondhand smoke in the office or an employee with cancer may sue for workers’ compensation benefits. This may also include claims for workers' compensation. Disability laws also may protect customers who are not able to patronize a business filled with smoky air because of their disability.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"In our view, the notion that a right to a home or private life includes the right to smoke whilst confined for very short periods in the ICU of a mental health institution is too generalised because it is too removed from the sphere of personal autonomy warranting protection. In terms of the position of the appellant in the present case, whilst in the ICU there are inevitably some constraints on a patient’s choices, for example, in terms of what they may eat and drink."
"Section 9 of the Bill of Rights provides as follows: Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
In the High Court Asher J said the threshold for breach of s 9 was a “high” one and “quite plainly” was not met in the appellant’s case. The Court of Appeal similarly concluded the appellant had fallen “well short” of showing a breach of s 9 with respect to disproportionately severe treatment.
We agree with the conclusions in the Courts below. The policy cannot be shown to meet the high threshold for a breach of s The Board implements its policy knowing that it will cause some pain and distress and that patients are likely to be particularly vulnerable at the time of admission to the ICU. However, as we have discussed, the response to that is to treat the patients in a humane way, in particular, by making NRT available."
"The general picture that emerges is that the introduction and implementation of smoking bans in these types of institutions is not without controversy. No doubt, also, as the evidence suggests, the interrelationship between mental health and smoking is complex. But both policy considerations and the Board’s obligations to others in the mental health facilities provide a proper basis for the Board’s policy and support the conclusion reached by both the High Court and the Court of Appeal. We accordingly conclude that, implemented in the way it has been by the Board following a careful process and with the provision of NRT for those who need it, the policy does not breach s 23(5).
We add that these factors also indicate the Court of Appeal was correct to conclude that the smoke-free policy is consistent with the Board’s obligations in s 22(1)(i) of the NZPHD Act to uphold the ethical and quality standards expected of care providers."
"When the evidence is viewed overall, there is no basis for us to disturb the findings of the High Court, endorsed by the Court of Appeal, that the provision of NRT “while not a panacea”, is “a humane and meaningful treatment” of nicotine withdrawal symptoms."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.