North Shore Times (New Zealand)
DHB patient loses smoking appeal
A mental health patient who claimed his rights were breached by a smokefree policy at Waitemata District Health Board has lost an appeal in the Supreme Court.
The man, in his 30s who has name suppression, claimed the board’s smoke-free policy was inconsistent with the New Zealand Bill of Rights and the DHB was obliged to have a smokers’ zone on its grounds.
He lost appeals to the High Court and the Court of Appeal, but appealed to the Supreme Court in November 2016.
However in a decision by the Supreme Court, released last week, it unanimously rejected the appeal. It did not order any costs be paid. The man suffered from paranoid schizophrenia as a result of a traumatic brain injury after a car crash.
He was an inpatient at the board’s two adult mental health units, Waiatarau in Waitakere Hospital and Taharoto in North Shore Hospital, over a 12-week period from June 2012.
Both units have a strict nonsmoking policy unless the patient leaves the grounds. The patient spent most of his time in the open ward, allowing him to leave the site to smoke, the court said.
However, he was admitted to the Intensive Care Unit on three occasions for a total of 11 days. During that time he was confined and unable to smoke. He spent a further two days in hospital where he was also not permitted to smoke.
In the Supreme Court, the patient claimed the DHB was obliged, under section six of the Smoke-free Environments Act 1990, to establish a dedicated smoking room in mental health units.
Second, he claimed the DHB’s smoke-free policy had breached his rights under the the Bill of Rights Act; citing the right to be treated with humanity; 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 he argued included the right to choose to smoke.
However, the court found under the Smoke-free Environments Act, the DHB was not obliged to provide a sanctioned smokers’ room in its mental health units.
It also found the way the smokefree policy was implemented did not breach the Bill of Rights Act and the patient was treated the same as all other patients who need to be in ICU.
Chief executive Dr Dale Bramley said the DHB was ‘‘heartened’’ the Supreme Court had ruled in favour of a policy that supported positive health outcomes for patients.
‘‘To allow patients to smoke in our facilities when we know this is damaging to health is inconsistent with our goals,’’ Bramley said.