Two psychiatric patients and a former psychiatric nurse took the Waitemata District Health Board to the High Court arguing the policy is unlawful under the DHB's controlling legislation and breaches the Bill of Rights Act. The High Court ruled against them in 2013 and in May this year the Court of Appeal dismissed their first appeal.
The DHB implemented its current smoke-free policy in 2009. Smoking inside workplaces is in general banned by the act although section 6 permits the use of dedicated smoking rooms for hospital patients. DHBs, however, went further than the act and, on health grounds and in line with the Government's wish that they help more smokers quit, banned smoking entirely on their premises, including outdoors.
Patients who want to smoke go off site if they can and are often seen smoking on streets outside hospitals, trailing their medical equipment.
One of the litigants, "Mr B", whose name is suppressed, has said he enjoys smoking because it is calming and helps him feel relaxed. He contends the effect of the smoke-free policy's forcing him to stop smoking is that he gets very uptight and feels as though a part of his freedom is taken away from him.
Mr B has, in the past, been a compulsory mental health in-patient of Waitemata and although mostly housed in an open ward, from which patients are permitted, if their condition allows, to walk off site to smoke, he spent 12 days in total, in three admissions, in an intensive care unit, from which he was not permitted to leave.
