Last month Nicky Stevens, a patient at the Waikato District Health Board's Henry Rongomau Bennett Centre, died in the Waikato River after being let out on unescorted leave. It was understood he was left unsupervised while having a cigarette at the fence line and left the centre unnoticed.
In 2010, Christine Morris was a patient at the same unit when she was able to walk off the premises and kill her neighbour, Diane White.
Morris had told her psychiatrist only minutes before her escape that she was going to kill her neighbour - but she was still left unsupervised to have a cigarette.
Francois said those cases highlighted that patients should be allowed to smoke in secure sections within the grounds or in dedicated smoking rooms.
He added that despite district health boards providing patients with smoking cessation courses, they did not want to quit.
"It's crazy. We predicted there would be more instances like this," he said. "The court didn't listen. They listened to the health board and they had their experts saying that won't happen here. And it did."
Francois will appear for his client, who has name suppression, in the Court of Appeal later this month in an attempt to overturn a 2013 judicial review that ruled patients had no right to smoke within the grounds of the Waitemata District Health Board.
His 33-year-old client has a psychotic disorder and is sometimes confined to the intensive care unit which patients are not allowed to leave to smoke.
The patient has told authorities that when he is forced to stop smoking he "gets irritable and at times angry", and feels "as though part of my freedom is taken away from me".
The 2013 High Court ruling found the DHB had the power to implement a no-smoking policy to protect patients, staff and visitors from smoke and to promote the cessation of smoking.
It also found the policy did not breach human rights.
