Round 3 of the national fluoride fight: Supporters 3; Opponents 0 - what does the latest decision mean and what’s been learned from the debate so far?

Thursday 16 October 2014

Authors: Ian Gault and Rebecca Rose

​​​The High Court dealt fluoride opponents a further blow last week by confirming that, when used to produce concentrations within legal limits, the two main compounds used to fluoridate drinking water are not “medicine”.

The decision (New Health NZ Inc v Attorney-General1) is the third successive victory for fluoride supporters. As such, it offers local authorities and DHBs reassurance about their relevant powers and the operation of New Zealand’s current fluoridation rules. But the debate is not over yet.

We outline the position that now prevails following the three main water fluoridation cases, what still remains open to challenge, and the decisions’ key implications for councils and others operating in the health sector.

Water fluoridation

Water fluoridation is the process of adjusting the natural level of fluoride in drinking water supplies to between 0.7ppm and 1.0ppm by adding measured quantities of a fluoride-releasing compound. In New Zealand, the two main compounds used to do so are hydrofluorosilicic acid (HFA) and sodium silico fluoride (SSF).

Fluoridation supporters (including the Ministry of Health) consider that fluoridated water is a “safe, effective and affordable way to prevent and reduce tooth decay across the whole population.”

The most common grounds of opposition to water fluoridation are that it is ineffective, unsafe and an infringement of civil liberties.

Water fluoridation began in New Zealand in 1954. Since then, the topic has remained a hot issue, with various councils over the years consequently deciding to start, stop or recommence fluoridation. Around 48% of New Zealanders currently live in areas with a fluoridation programme.

What’s been challenged to date?

Collectively, the three main fluoridation cases have challenged both the legality of fluoridation programmes and councils’ decision-making processes where there has been a decision to start or recommence such programmes. More specifically, opponents have claimed that:2

  • water fluoridation programmes are an unjustifiable breach of the right to refuse medical treatment under section 11 of the New Zealand Bill of Rights Act 1990 (NZBORA);

  • local authorities have acted ultra vires as they lack capacity and the legal power to fluoridate drinking water for therapeutic purposes, because fluoridation:

    •  is not authorised by the Local Government Act 2002 (LGA 2002);

    • creates a therapeutic “food” that has not been approved by the Minister of Health under the Medicines Act 1981; and

    • is not authorised by the Health Act 1956;

  • in deciding to fluoridate water supplies councils have wrongly failed to:

    • take into account various mandatory relevant considerations, namely assertions about fluoride’s safety and efficacy; and

    • use the special consultative procedure as required by sections 83, 87 and 97 of the LGA 2002 because fluoridation of water supplies is a “significant activity”; and

  • as currently used to fluoridate water supplies, both HFA and SSF are “medicine” under the Medicines Act 1981.

Courts’ conclusions

In rejecting the above claims, the Courts have concluded that:

Fluoridation is not “medical treatment” for the purposes of s 11 of the NZBORA

  • although water fluoridation has a “therapeutic” purpose, such programmes are not “medical treatment” for the purpose of section 11 of the NZBORA. Drinking of fluoridated water cannot be categorised as “undergoing” treatment. Section 11 of the NZBORA is a much narrower right than section 10 of the NZBORA, which protects individuals against medical and scientific experimentation. Something more than a medical purpose is needed for a therapeutic intervention to qualify as a “medical treatment”;

  • breach of section 11 requires a “direct interference with the body or state of mind of an individual” and no competing interests needing consideration. Section 11 does not cover public health interventions delivered to the population at large or inhabitants of a particular locality. If the situation were otherwise, individuals could veto public health measures that local authorities have a responsibility to deliver. No material distinction exists between water fluoridation and other established public health measures such as chlorination of water, pasteurisation of milk, and the addition of iodine to salt or folic acid to bread; and

  • even if water fluoridation does engage section 11 of the NZBORA, councils’ power to fluoridate water is a justified restriction of the right to refuse medical treatment – fluoridation’s benefits far outweighing its risks.

Fluoridation is within councils’ powers under the LGA 2002 and Health Act 1956

  • councils’ power of general competence does not extend to regulatory or coercive powers not possessed by ordinary citizens. But fluoridation is not a regulatory function. As such, it does not require express statutory authority;

  • consistent with the position under earlier legislation, the LGA 2002 contains an implied power to fluoridate;

  • the Health Act 1956 recognises that councils may add HFA and SSF to drinking water in accordance with drinking water standards under the Health Act; and

  • fluoridated water is not “food” for the purposes of the Medicines Act 1981 – all drinks being excluded from the definition of “food”. Fluoridation programmes, therefore, do not require Minister of Health consent.

Fluoridation decision-making processes proper

  • mandatory factors that councils must consider in fluoridation decisions are those which arise by implication from the scheme and purpose of the relevant legislation;

  • councils have no obligation to consider controversial factual assertions which cannot possibly be implied from the general terms of their empowering legislation; and

  • in any event, sufficient consideration of all the controversial factual assertions about fluoride’s safety and effectiveness in improving public oral health has occurred.

HFA and SSF not “medicine” under Medicines Act 1981

  • fluoridation programmes see fluoride “administered” to humans for “therapeutic purposes” under the Medicine Act 1981; but

  • when used to fluoridate water up to the current allowable level of 1.5mg/l under section 69O of the Health Act 1956, HFA and SSF are not “medicine”. That is because Schedule 1 of the Medicines Regulations 1984 states that fluoride is only “medicine” in concentrations greater than 10mg/l and such regulations are relevant under the “context” analysis required by section 3 of the Medicines Act 1981; and

  • fluoride is a “medicine” if added to water supplies in concentrations greater than 10mg/l.

Implications

The key implications of the three main fluoridation cases are that:

  • local authorities and others operating in the health sector now have greater certainty about the scope of their powers and the requirements for valid decision-making – both in relation to fluoridation and more generally. Matters within councils’ power of general competence do not require express statutory authorisation;

  • the meaning of “medical treatment” and the operation of section 11 of the NZBORA is now much clearer – fluoridation and other public health interventions fall outside section 11’s scope; breach of the right requires a “direct interference”;

  • because none of the High Court’s decisions finally rule on fluoridation’s substantive merits, the issue remains open for challenge by fluoride opponents. But the Court’s finding in the South Taranaki District Council case that fluoridation is “justified” under section 5 of the NZBORA should weigh against fluoride opponents if any such challenge is made;

  • unless the decisions to date are overturned on appeal, future fluoridation challenges (or other “mass medication” claims) will need to focus on errors in councils’ decision-making processes if they are to succeed;

  • to the extent any uncertainty existed in judicial review cases, the outcome of interim relief proceedings cannot be better than that available on the successful substantive application;

  • where public safety is a major concern, courts will take a common sense approach to the test for interim relief so that the bar is not set unduly high; and

  • if an unsuccessful party advances “legitimate arguments” in judicial review proceedings that are not just for personal interest, the public interest exception that applies to costs orders may mean that an order for no costs (or minimal costs) is most appropriate. However, such orders are rare. The exception applies even more sparingly in the appeal context. Consequently, groups keen to pursue similar matters in the future should not consider themselves immune from an adverse costs order.

What next?

New Health New Zealand Inc has appealed the South Taranaki District Council decision, which deals with fluoridation’s legality and section 11 of the NZBORA. It may also appeal the Court’s latest decision about whether HFA and SSF are each “medicine”. The usefulness of that appeal may, however, be limited if the Minister of Health recommends a Regulation that expressly exempts HFA and SSF from the definition of “medicine” where used to fluoridate drinking water.3


1New Health New Zealand Inc v Attorney-General for and on behalf of the Minister of Health [2014] NZHC 2487.

2 See, in order of decision, New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395; Safe Water Alternative New Zealand Inc v Hamilton City Council [2014] NZHC 1463 and New Health New Zealand Inc v Attorney-General for and on behalf of the Minister of Health [2014] NZHC 2487.

3 Hamilton City’s fluoride opponents have withdrawn from the legal debate for financial reasons.


Disclaimer

This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Ian Gault

    Partner and Deputy Chair Auckland
  • Rebecca Rose

    Senior Associate Auckland
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