Judicial decision validates DHB effort to do the right thing

8 July 2013

Judicial decision validates DHB’s efforts to do the right thing for patients and staff

The judicial decision released today upholding Waitemata District Health Board’s smokefree policy validates all the work the DHB has put into protecting the health of patients and staff, says Waitemata DHB CEO Dr Dale Bramley.

An application for a judicial review challenging its smokefree policy was heard in the Auckland High Court over two days in May. It referred particularly to inpatients prevented from smoking in the intensive care areas of the acute inpatient mental health units.

In his written decision released today, Justice Asher dismissed all claims, concluding that the New Zealand Public Health and Disability Act 2000 “gives DHBs the power to implement a non-smoking policy, to protect patients, staff and visitors from smoke and to promote the cessation of smoking”.

Justice Asher also concluded that there was no discrimination on the grounds of psychiatric illness in breach of the New Zealand Bill of Rights Act 1990.

“The restraint applied equally to all patients, staff and visitors and was not on the basis of psychiatric illness or acute illness… There was no discrimination on the ground of a disability, as nicotine dependence from smoking is not a disability. There were no breaches of other human rights such as the right not to be subject to torture and cruel treatment.”

He was also satisfied that the DHB gave careful consideration to the implications of the smokefree policy on patients who smoke. “There were project groups and there was extensive consultation. Advice was obtained. It is possible to see the development of a policy incrementally over a 10 year period. I am satisfied that the WDHB took into account the impact of its policy on smokers.”

His summary of findings also stated that “the ban was rationally connected with the purpose of reducing smoking and protecting persons from smoking, and the ban was proportionate and did no more than was necessary in its context to achieve its purpose of stopping smoking and protecting non-smokers from tobacco smoke.”

Waitemata DHB CEO Dr Dale Bramley says the decision validates the DHB’s smokefree policy, which prohibits all smoking on its grounds. All areas of the hospital, including its mental health units, went completely smokefree in November 2009.

“The decision today justifies our move to go completely smokefree three and a half years ago. As a leading health care organisation, our DHB needs to lead by example and do what’s best for the health of our patients and staff.

“Smoking is the leading modifiable risk factor causing death and morbidity in New Zealand,” he says. “An estimated 4000 to 5000 New Zealanders die of smoking related illness and a further estimated 350 New Zealanders die of second hand smoke exposure each year.”

Around a third of all tobacco products consumed in New Zealand each year is by people who have received mental health treatment in the last 12 months and Waitemata DHB takes seriously its role to protect the health of the whole population, inclusive of this vulnerable group.

The stance taken by Waitemata DHB is backed up by the recent joint report released by the Royal College of Physicians and the Royal College of Psychiatrists (UK).

Waitemata DHB chairman Dr Lester Levy says the smokefree policy is part of the DHB’s ongoing commitment to health promotion and disease prevention in our community.

ENDS

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