B v WAITEMATA DISTRICT HEALTH BOARD CA524/2013 [2015] NZCA 139

B v WAITEMATA DISTRICT HEALTH BOARD CA524/2013 [2015] NZCA 139 [30 April 2015]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THEAPPELLANT'S NAME REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA524/2013[2015] NZCA 139BETWEEN BAppellantAND WAITEMATA DISTRICT HEALTHBOARDRespondentHearing: 24 April 2015Court: Randerson, Stevens and White JJCounsel: R K Francois for AppellantJ P Coates and P W Le Cren for RespondentJudgment: 30 April 2015 at 10:30 amJUDGMENT OF THE COURTA The Court gives directions in terms of [7], [22]and [24].B The application for leave to adduce further evidence on appeal is dismissed.C Costs reserved.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] This appeal concerns a challenge by the appellant and two others1 to the policy of the respondent which prohibits smoking in its hospitals and surrounding grounds. The appellants sought a judicial review of the decision of the respondent to implement a policy known as the Waitemata District Health Board (WDHB) Smoke-Free Environment Policy, dated November 2009 (Smoke-Free Policy) on a variety of grounds. These included that the Smoke-Free Policy was ultra vires and that it contravened the New Zealand Bill of Rights Act 1990. The decision of the respondent to adopt the Smoke-Free Policy was also challenged on the grounds that irrelevant factors were taken into account, relevant facts were not considered and that it was irrational. The challenged policy is applicable to hospitals including psychiatric units, run by the respondent.[2] All grounds of challenge were rejected by Asher J in the High Court.2 The Judge found the Smoke-Free Policy was within the purposes of the New Zealand Public Health and Disability Act 2000 (NZPHDA). It was also within the powers and objectives of the respondent under the Crown Entities Act 2004.[3] For present purposes it is sufficient to set out the Judge's summary ofconclusions as follows:[91] I conclude that the NZPHDA 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.[92] This position is in contrast to the powers of those in charge of prisons that have been successfully challenged in this Court. They do not have the same functions and powers as DHBs, and were bound by s 6A of the [Smoke-Free Environment Act 1990], which anticipates that there will be smoking by prisoners.[93] In deciding on the Smoke-free Policy there was no failure on the part of the WDHB to consider relevant considerations or the consideration of irrelevant matters. Nor was there irrationality, breach of duty to consult or breach of legitimate expectation.1 Ms C and Ms Steele. These applicants in the judicial review proceeding have not joined in the appeal.2 B v Waitemata Health Board [2013] NZHC 1702, [2013] NZAR 937.[94] There was no discrimination on the ground 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. Rather, the Smoke-free Policy effectivelyprohibited smoking on the basis of particular features of the applicants'condition (danger to themselves or others or acuity of condition), or employment situation, that led to their detention or presence on the premises, and consequent inability to leave the hospital property to smoke. 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.[95] Even if there had been breaches of the applicants' rights, theSmoke-free Policy was a justified limitation under s 5 of that Act. The purpose of the policy was important, 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.[4] A hearing was directed to resolve several procedural issues prior to setting down the appeal.Amended notice of appeal[5] On 5 August 2013 Mr Francois, counsel for Mr B, filed a six page notice of appeal. It was focussed and succinct and signalled in the usual way a challenge on appeal to the conclusions just summarised. It is what might be considered to be entirely appropriate to an appeal arising from a judicial review proceeding.[6] On 23 February 2015, Mr Francois filed an amended notice of appeal, some 20 pages long. It set out largely the same grounds as notified in the original notice but it added a substantial number of allegations of misconduct by the respondent and/or its legal advisers.[7] Mr Francois advised us at the hearing that the allegations of misconduct are abandoned. We direct accordingly that the appellant is to file within seven days of the date of this judgment an amended notice of appeal confined to the grounds and specified in paragraphs 1 to 8 inclusive of the present amended notice of appeal.Application for leave to adduce further evidence[8] The appellant seeks leave to adduce three further items of evidence on appeal. The application for leave is opposed by the respondent.Mr Watson's affidavit[9] The first item is an affidavit from a Mr Watson. He deposes that on 24 February 2015 he observed five people smoking within the grounds of one of the hospital units administered by the respondent. Mr Francois submits that this evidence is relevant to one of the issues in the High Court referred to as intra-grounds discrimination. It was argued in the High Court that psychiatric patients who are confined to the Intensive Care Unit are subjected to this form of discrimination because of the acuity of their psychiatric illness. It was submitted that this group of psychiatric patients are forced to stop smoking whereas psychiatric patients who are less acutely unwell are entitled to smoke outside the hospital grounds. The respondent had argued, according to counsel, that patients in the Intensive Care Unit can walk outside but cannot smoke while they are on hospital grounds in terms of the Smoke-Free Policy. Mr Francois submits that Mr Watson's affidavit refutes the respondent's position.[10] Mr Coates for the respondent submitted that the affidavit of Mr Watson should not be admitted because it was irrelevant to the issues the Court will have todetermine on appeal and did not advance the appellant's case. He submitted that the respondent would have difficulty in answering Mr Watson's specific evidence. The Smoke-Free Policy was clear in its terms and there was evidence before the High Court from the respondent's clinical director of health that if there were anyknown breaches of the policy, steps would be taken to enforce it. The enforcement of the Policy is a different issue to the making of the Policy. As well there was other evidence before the High Court that patients smoked in hospital grounds.[11] We are not persuaded that Mr Watson's affidavit is likely to materially advance the appellant's case and, for the reasons given by Mr Coates, we aresatisfied it is not cogent. Therefore it does not meet one of the key threshold requirements for admission of further evidence on appeal.3Mr MacPherson's affidavit[12] The second item of evidence the appellant seeks to adduce on appeal is an affidavit from a Mr MacPherson. He deposes that he is the father of a patient admitted to the Henry Rongomau Bennett Centre in Hamilton administered by the Waikato District Health Board. Tragically, on 12 March 2015, his son's body wasfound in the Waikato River. Mr MacPherson expresses the belief that the smoke-freepolicy adopted by the Waikato District Health Board led directly to his son's death. We were told there is to be a coroner's inquiry into the death but this has not yet taken place.[13] Mr Francois submitted that Mr MacPherson's evidence was relevant to atleast two of the grounds of appeal. The first was that the High Court was wrong to find there was no failure by the respondent to take into account relevant factors including in particular the risk to the safety of psychiatric patients who are obliged toleave the respondent's premises in order to smoke. The second ground to which theevidence is said to be relevant is that the High Court gave insufficient weight to evidence that a blanket ban on smoking is injurious to the mental health of patients and interferes with the therapeutic relationship between nurses and patients.[14] Mr Coates opposes the introduction of the evidence of Mr MacPherson on four main grounds. First, the incident to which Mr MacPherson refers took place within the jurisdiction of another district health board and the respondent is not in a position to respond to it. Second, the incident has not yet been investigated by the coroner and the facts are not therefore established. Third, it is yet to be shownwhether Mr MacPherson's belief as to the cause of his son's death is correct and, inparticular, whether the smoke-free policy was a relevant factor in what happened. Fourth, there was other evidence before the High Court about the alleged harmful effects of the Smoke-Free Policy and Mr MacPherson's evidence would not materially advance the appellant's case.3 Erceg v Balenia Ltd [2008] NZCA 535 at [15].[15] We accept Mr Coates' submissions. While sympathising withMr MacPherson in his loss, we are not satisfied that the evidence is of sufficient cogency to warrant its admission on appeal.Dr Rees Tapsell[16] The final item of evidence relates to a statement attributed to Dr Rees Tapsell which the appellant has extracted from a website for the Waikato District Health Board. It was said to relate to the circumstances in which a psychiatric patient left the grounds of the Henry Rongomau Bennett Centre in Hamilton in 2010 in order to smoke a cigarette. It is said that the patient then went to the home of a Hamilton resident and killed that person. Dr Tapsell is said to have stated:Staff made a reasonable judgment to allow [the patient] to have a cigarette in the courtyard to cool down. While in the courtyard she scaled the fence and staff were unable to stop her.[17] Mr Francois submitted that this evidence should be adduced on appeal on the ground that counsel was not aware of it at the time of the hearing in the High Court.It was relevant to the appellant's submission that the smoke-free policies adopted by district health boards are not only injurious to the mental health of patients but they also give rise to unforeseen circumstances that endanger the lives of patients and innocent people in the community.[18] Mr Coates opposed the introduction of this evidence on similar grounds tothe respondent's opposition to Mr MacPherson's evidence. He pointed out that therewas evidence before the High Court relevant to the submissions made by the appellant in relation to the alleged injurious effects of the smoke-free policy. This included evidence from B and C, evidence from a patient in a psychiatric unit in Western Australia and evidence about a patient in a Christchurch Hospital who had committed suicide.[19] We conclude that there was sufficient material before the High Court to enable the appellant to advance the submission referred to by counsel and that evidence relating to the 2010 incident in Hamilton would not materially assist. No affidavit has been provided by Dr Tapsell or any other deponent to explain thecircumstances and we accept the submissions made by Mr Coates that it would be difficult for the respondent to make any proper response to allegations of this kind made in respect of premises for which another district health board is responsible.[20] It is highly likely that the facts and circumstances relating to the 2010 incident and the role (if any) of the Smoke-Free Policy in what occurred will be disputed. Judicial review proceedings are not appropriate for the resolution of disputed questions of fact. It was not necessary for the High Court to resolve factual issues of the kind which the application to adduce further evidence relates. Essentially, the High Court judgment turned on questions of law and we are not satisfied that leave should be given to adduce evidence relating to the 2010 incident.[21] Accordingly, the application to adduce further evidence on appeal is dismissed.Service on the Crown[22] During the hearing, we canvassed with counsel whether the Crown should be served with the notice of appeal. Counsel were agreed that this should occur since there were serious questions raised about the application of the New Zealand Bill of Rights Act 1990 and it was appropriate that the Crown should have the opportunity to apply to appear as an intervener at the hearing of the appeal. Accordingly, we direct that the appellant should forthwith serve the Crown Law Office with a copy of the notice of appeal and a copy of the judgment under appeal.Length of hearing[23] Mr Francois informed the Court that the case on appeal runs to approximately six volumes and submitted that a three day hearing was appropriate. Mr Coates submitted that one and a half days should be sufficient, pointing out that the High Court hearing occupied two days. We are satisfied that two days should be set aside for the hearing but the Registry is asked to allow a third reserve day. When it is known whether the Crown intends to seek leave to intervene, the length of hearing allocated can be reviewed. But, even with the involvement of the Crown, we are presently of the view that two days should be sufficient.Setting down[24] The appeal should now be set down for hearing.Costs[25] Costs in relation to the matters before the Court are reserved.Solicitors:Warren Simpson, Papakura for AppellantClaro Law, Wellington for Respondent