New Zealand: High Court rejects fluoride challenge, but still uncertainty

Last Updated: 3 April 2014

The High Court has confirmed that local authorities have the power to add fluoride to drinking water. The South Taranaki District Council (Council) has successfully defended its decision to add fluoride to the water supplies of Patea and Waverley. The Council's decision was challenged by New Health New Zealand Inc (New Health), an organisation that states it seeks to advance and protect health freedom for consumers. New Health has been actively campaigning against fluoridation (New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, Rodney Hansen J).

The High Court decision is important to the overall fluoridation debate, which is occurring throughout the country. More generally, it expands on local authorities' powers under the Local Government Act 2002, including the limits imposed by the New Zealand Bill of Rights Act 1990.

Legal power to fluoridate water

New Health argued that the Council did not have the legal power to add fluoride to the water supply for therapeutic purposes. The High Court disagreed.

Section 12 of the Local Government Act gives local authorities general powers of competence. The Court found that the act of adding fluoride to drinking water is a physical act associated with the provision of core services and comes within the general powers of competence under section 12. It is not a coercive or regulatory act, such that it might fall outside of the power of general competence.

In addition, the Local Government Act requires a local authority to 'maintain' water services, if the local authority had provided water services prior to the Act coming into force. The High Court considered Parliament must be taken to have empowered local authorities to add fluoride to drinking water, because at the time the Act came into force, some local authorities already added fluoride to their water supply.

The High Court also found the power to fluoridate is consistent with the duty of local authorities to promote public health under the Health Act 1956. In addition, the Health Act specifies that drinking water standards issued by the Minister for Health cannot require fluoride to be added to drinking water. The High Court found this is consistent with a Parliamentary intention that fluoride may be added to drinking water, and that any decision in this regard was for local government to make.

Right to refuse to undergo medical treatment

New Health's second argument was that adding fluoride to the water supply constitutes a breach of the right to refuse to undergo medical treatment (contained in the New Zealand Bill of Rights Act 1990).

The High Court concluded that fluoridation does not constitute medical treatment, on the basis that medical treatment involves direct interference with the body or state of mind of an individual, and does not extend to public health interventions delivered to the inhabitants of a particular locality or the population at large. There was no material distinction between fluoridation and other established public health measures, such as chlorination of water or the addition of iodine to salt.

Even if fluoridation is medical treatment, the High Court held the power of the Council to fluoridate is a justified curtailment of the right to refuse medical treatment under section 5 of the New Zealand Bill of Rights Act. It held that the advantages of fluoridation significantly outweigh any negative outcomes of fluoridation.

The decision reinforces that subordinate legislation which limits the rights and freedoms contained in the Bill of Rights must be for a purpose sufficiently important to justify curtailing the right or freedom that is being limited.

Mandatory relevant considerations

New Health's final argument was that the Council had failed to take into account a number of mandatory relevant considerations in making the decision to add fluoride to the water supply, namely that:

  • The fluoride added to water supplies is sourced from industrial by-products and contains contaminants that are potentially harmful to health.
  • There is a body of credible scientific evidence that shows that adding fluoride to water supplies to achieve a level of 0.7 to 1ppm fluoride is potentially harmful to health.
  • There is no credible scientific research to show how drinking fluoridated water at between 0.7 and 1ppm fluoride can reduce tooth decay.

The High Court found that these were merely controversial factual assertions that could not possibly be implied as mandatory considerations from the general terms of the Council's empowering legislation (the Local Government Act 2002).

The end of the fluoridation debate?

The High Court pointed out in its judgment that is was considering only the question of whether the Council has the legal power to fluoridate and not the substantive merits of fluoridation. This still leaves room for fluoridation opponents to put their case.

The decision, however, could be used to support fluoridation as the Court did evaluate the substantive arguments for and against fluoridation in the course of considering the Bill of Rights issues. The Court accepted that there is respectable scientific and medical support for the Council's position. It also considered that New Health's factual assertions were controversial.

New Health has appealed the High Court decision to the Court of Appeal. This leaves some uncertainty for the South Taranaki District Council. It also means that the position is not yet settled for other local authorities, such as the Hamilton City Council, which voted to restore fluoride to Hamilton's drinking water subsequent to the High Court decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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