The High Court has dismissed a challenge to Waitemata DHB's policy prohibiting smoking in its hospitals and surrounding grounds, including in the in-patient psychiatric ward.
The Court noted that a DHB, like any property owner, can regulate the behaviour and activity of patients, staff and visitors who use and access sites owned or leased by the DHB, so long as any restrictions are consistent with the DHB's powers and functions. Smoking is a recognised and preventable health hazard, and the Court found that the "containment and reduction of that hazard... falls entirely within the purposes of DHBs to "improve, promote and protect the health of New Zealanders"". Further, while the Smoke-free Environments Act 1990 allows employers to create dedicated smoking rooms in hospital care institutions, residential disability care institution and rest homes, the DHB was entitled to determine whether it should provide such a place. The Court also found that the policy did not constitute unlawful discrimination as nicotine dependence from smoking is not a disability and the policy treated all patients alike: "All patients are prevented from smoking if they cannot leave the WDHB's premises. The reason that someone cannot smoke on WDHB's grounds is not because someone is a patient or a visitor, or because they are an employee, or any prohibited ground: it is simply because they are on hospital grounds". B & Ors v Waitemata DHB NZHC 1702