A $4,000 smoking offence has become a $1.5 million rest-home trial

A Rotorua judge is deciding whether a rest home should have stopped a 73-year-old man from smoking in his room. Whichever way the ruling goes, it will tell every aged-care operator how much of a resident’s private behaviour they are now legally expected to police. The awkward part is that operators can be criticised for restricting residents and prosecuted for not restricting them enough.

Heritage Lifecare, trading as Cantabria Lifecare & Village, is the company in the dock. Its trial over the death of a resident after a fire began on 5 October, after being set down for October back in February. Thomas Callaghan died on 30 December 2021 after falling asleep while smoking. Judge John Bergseng has reserved his decision.

WorkSafe says the warning signs were obvious

WorkSafe charged Heritage under the Health and Safety at Work Act with exposing an individual to risk of serious injury or death, an offence carrying a maximum fine of $1.5 million. Prosecutor Ben Finn told the court Heritage “should have foreseen” the risk. He listed the red flags from late 2021. Callaghan bought cigarettes from a dairy during lockdown. He was moved to a room with an outdoor area and was found smoking inside a week later. Staff confiscated his lighter after smelling smoke and kept reminding him to go outside. A doctor diagnosed dementia in October 2021, and Finn said Heritage did not update his care plan.

The prosecution’s theory has barely changed since the original charging document. It says Heritage should have built a safe system of work around smoking. That meant limiting unsupervised access to lighters and cigarettes and enforcing its own indoor ban.

The defence says the standard is unworkable

Defence counsel Paul White said controlling smoking materials needs a level of supervision aged care simply cannot provide. Callaghan was at rest-home level care, which carries “the greatest independence and lowest need for assistance”. He could have visitors, leave the site and receive whatever they brought him. On the night of the fire, three caregivers were rostered for 36 residents in his wing. White said there was “only one confirmed occasion” of indoor smoking. He also argued Callaghan’s room was not a workplace when no care was being given. Then came the line every operator should read twice. White said providers were already “even more reluctant to take smokers” since the prosecution began. “Where are the smokers going to go?” he asked.

That is a fair question. On WorkSafe’s logic, a provider with three staff on a night shift is expected to manage the habits of a largely independent adult. It could only do that by treating him like a high-dependency patient. Nobody funds that level of care, and nobody contracted Heritage to deliver it.

Two laws, one cigarette, a 375-fold gap

Parliament already wrote a law for this exact situation. The Smokefree Environments and Regulated Products Act lets care residents smoke in ventilated rooms. It requires employers to take reasonably practicable steps against smoking elsewhere. Breaches carry a maximum of $4,000 for a company. WorkSafe instead reached for a statute with a ceiling 375 times higher. For the same facts, an operator’s exposure depends on which regulator turns up and which act it picks.

The specialist regime is shifting too. The Ministry for Health’s analysis on strengthening Smokefree Act offences and penalties went up on the Government’s regulatory analysis site on 28 October, days before closing addresses. Operators are facing tighter rules through the courts and through Parliament at the same time.

The people who get turned away

Smoking is fading, but not evenly. Daily smoking fell to 6.8% of adults in the 2024/25 NZ Health Survey. Yet it sits at 9.7% among 55 to 64 year olds, the cohort heading into care. It is 15% among Māori adults and 12.9% in the most deprived areas. Risk-averse admission policies will fall hardest on people who are already the hardest to place, in a sector short of beds.

This tension is old. In 2013, the Aged Care Association’s then-chief executive Martin Taylor called stopping residents from smoking “a form of elder abuse”. In 2020, AUT’s Professor Judy McGregor warned there was no single independent oversight focus on safety and quality in aged care. The Heritage case shows what that fragmentation looks like in practice.

What boards should do before the verdict

If Heritage is convicted, insurers will reprice and lawyers will rewrite admission criteria. More facilities will quietly decline smokers, inviting discrimination complaints in turn. If it is acquitted, the Smokefree penalty review still means compliance costs are rising. Either way, operators should not wait for the judgment. They should document smoking risk assessments, update care plans the moment a diagnosis changes, and record every reasonable step they take.

The bigger fix belongs to policymakers. A provider cannot respect a resident’s autonomy and also guarantee his behaviour. Until the law says which one it wants, aged care will keep paying for both.

Sources

• NZ Herald: Rotorua rest home company Heritage Lifecare trial – Defence warns of impact on aged care sector if convicted (2026-11-03)
• NZ Herald: Rest home company Heritage Lifecare to face trial after resident’s fire death (2026-02-18)
• NZCity: A Rotorua rest home will go to trial in October, over the death of a resident after a fire (2026-02-19)
• Downrightnow: Trial of Rotorua rest home company Heritage Lifecare begins after resident dies after fire (2026-10-05)
• Ministry for Health: Strengthening offences and penalties under the Smokefree Environments and Regulated Products Act 1990 (2026-10-28)
• RNZ: Rest home smoking ban ‘wrong’ (2013-07-07)
• AUT: Call for better oversight of aged care (2020-04-28)

Correction (3 November 2026): An earlier version of this article said the Ministry for Regulation published its analysis on strengthening Smokefree Act offences and penalties. The analysis is the Ministry of Health’s. The Ministry for Regulation publishes it in the Government’s central repository for regulatory analysis.