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30 July 2013
Following two recent High Court decisions(1) which held that the imposition of a smoking ban in prisons, first by amending prison rules and subsequently by amending regulations, was unlawful (for further details please see "Prison smoking ban prompts judicial intervention and raises constitutional concerns"), the High Court has released a decision(2) upholding the lawfulness of a policy banning smoking on all properties owned or controlled by a district health board (DHB). The contrasting outcomes provide a useful illustration of the approach taken in judicial review in New Zealand, including the critical nature of the relevant statutory provisions and the limits of challenging the substantive merits of an administrative decision.
In November 2009, Waitemata DHB imposed a total smoking ban on all its sites. The ban was not limited to buildings, vehicles and offices, but extended even to outdoor areas. A legal challenge was brought by three applicants, two of them psychiatric patients at North Shore Hospital (a Waitemata DHB site) and the third a former psychiatric nurse at Waitakere Hospital (another Waitemata DHB site). The applicants argued that the policy was illegal and in breach of rights. Particular emphasis was placed on the position of psychiatric patients who were compulsorily detained at mental health facilities and who were effectively forced by the policy to stop smoking. The case for judicial review was based on the usual grounds – illegality, irrationality and breach of natural justice (based on legitimate expectations).
The court held that DHBs are statutory entities and body corporates. They have the powers of a natural person and owned or leased the sites concerned. However, they may act only for the purpose of performing their statutory functions and advancing the objectives set out in the New Zealand Public Health and Disability Act 2000. The primary objective of this act is to achieve for New Zealanders "the improvement, promotion and protection of their health". DHBs are crown entities; one of the statutory objectives of a crown entity is "to improve, promote and protect the health of people and communities". In addition, one of DHBs' express statutory functions is "to promote the reduction of adverse social and environmental effects on the health of people and communities".
Despite the reference in the Waitemata DHB smoke-free policy to the Smoke-free Environments Act 1990 and the Health and Safety in Employment Act 1992 (and the lack of any reference to the New Zealand Public Health and Disability Act), consideration of legality could not be limited to those acts and needed to focus on the New Zealand Public Health and Disability Act. The court considered that the imposition of a smoking ban was for the purpose of performing the DHB's statutory functions and achieving relevant statutory objectives, and was therefore within its legal powers. In contrast to the provisions relating to prisons, which assumed or anticipated that prisoners would smoke, no similar assumptions arose in the case of legislation affecting hospitals. As a result, Waitemata DHB was acting within its statutory powers when it instituted the smoke-free policy.
The court held that a paramount and relevant consideration for the policy was the promotion of the health of patients and the community by avoiding the health hazard of smoking. The cost and practical difficulties of creating dedicated smoking rooms was also a relevant consideration in the particular circumstances. The court rejected the submission that the DHB had failed to have regard to patients' rights, ethical principles and the rights of those with disabilities. The evidence showed that careful consideration had been given to the implications of the policy on patients who smoked.
For similar reasons, the contention of irrationality was rejected. Even though the subject matter affected individual liberties, it was open to a reasonable body to reach the challenged decision. There was no need for the court to analyse differing opinions on the overall balance of potential benefits and drawbacks. Once it was clear that there was a body of opinion to support the imposition of the ban, the decision could not be said to be irrational.
A challenge on a lack of consultation met a similar fate. There were no applicable statutory obligations to consult and consultation had in fact occurred over a 10-year period in developing the policy. There had even been a pilot scheme at a single facility from which consultation feedback had been obtained. The allegation that patients had had a substantive legitimate explanation for being able to smoke was rejected as baseless.
The balance of the arguments concerned alleged breaches of the Bill of Rights Act and the Human Rights Act in the form of unlawful discrimination. The discrimination was said to be between intensive care psychiatric patients (who were confined to the premises) and other psychiatric patients with freedom of movement to go to the property boundary to smoke, and the ground of discrimination was said to be psychiatric illness. The court rejected the submission, pointing out that distinction was, in fact, not based on psychiatric illness. Non-detained psychiatric patients could leave the property to smoke, whereas non-psychiatric patients who lacked mobility could not go outside the property to smoke. The restriction applied solely to being on the property and applied equally to patients, visitors and staff. The court rejected an alternative argument that nicotine addiction itself was a disability. It also rejected an argument that the policy breached the rights not to be subject to torture or cruel treatment, to be treated with humanity and respect for the inherent dignity of the person and to respect private life, holding that a smoking ban fell well below the threshold for infringement of those rights. Alternatively, any breaches were held to be proportionate and justified.
The Waitemata DHB decision illustrates the importance of statutory context in challenges to the legality of different decisions, even when those decisions have similar objectives. The public health legislation contains a number of paternalistic objectives and functions consistent with the adoption of policies for the good of those affected. In contrast, the prison legislation contained provisions aimed at defining precisely the loss of rights and liberties that are inherent in imprisonment. The differing statutory context was held to distinguish the scope of the powers conferred, even in the case of compulsorily detained patients. The decision also illustrates that challenging decisions on the basis of irrationality where bodies of opinion reasonably differ is generally futile; the decision maker is entitled to adopt one of the available views or bodies of opinion.
One consequence of the critical nature of statutory context is that individual liberties are more likely to receive greater protection from the courts when the issue arises in legislation aimed at curtailing rights and freedoms than in cases where the relevant statutory context is paternalistic in nature.
(1) Taylor v Auckland Prison  NZHC 3591; Taylor v Attorney General  NZHC 1659.
(2) B v Waitemata District Health Board  NZHC 1702.
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