New Health New Zealand Incorporated v South Taranaki District Council

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRanderson J
Judgment Date27 Sep 2016
Neutral Citation[2016] NZCA 462
Docket NumberCA159/2014 CA529/2015

[2016] NZCA 462

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Randerson, Wild and French JJ

CA159/2014

CA615/2014

CA529/2015

BETWEEN
New Health New Zealand Incorporated
Appellant
and
South Taranaki District Council
Respondent
BETWEEN
New Health New Zealand Incorporated
Appellant
and
Attorney-General for and on Behalf of the Minister of Health
Respondent
BETWEEN
Attorney-General for and on Behalf of the Minister of Health
Respondent
Counsel:

M T Scholtens QC, L M Hansen and J Watson for New Health New Zealand Inc

D J S Laing and H P Harwood for South Taranaki District Council

S V McKechnie, K G Stone and D R Taylor for Attorney-General on behalf of the Minister of Health

A M Powell and A L Dixon for Attorney-General as Intervener

Appeals against three separate High Court decisions which: dismissed the appellant's judicial review application seeking declarations that the decision of the respondent to add fluoride to the water supplies was ultra vires and in breach of s11 New Zealand Bill of Rights Act 1990 (“NZBORA”) (right to refuse to undergo medical treatment); held that two compounds added to water supplies for fluoridation purposes were not medicines in terms of the Medicines Act 1981 (“MA”); and dismissed a judicial review application concerning the passing of the Medicines Amendment Regulations 2015 which declared the compounds were not medicines for the purposes of the MA-whether the respondent had statutory authority to fluoridate the water supplies under s130 Local Government Act 2002 (“LGA”) (obligation to provide water services) and s69O Health Act 1956 (Minister may issue, adopt, amend, or revoke drinking-water standards) — whether the fluoridation of water was not medical treatment for the purposes of s11 NZBORA-whether, if the right to refuse medical treatment was engaged, fluoridation was a demonstrably justified limit prescribed by law in terms of s5 NZBORA (justified limitations).

Held: The Court was concerned with the lawfulness of the process of fluoridation. The merits of the process were at issue only in a broad sense as an aspect of New Health's argument that the process breached the NZBORA. The Government had signalled its intention to shift the decision whether to fluoridate drinking water supplies from local authorities to District Health Boards.

By requiring local bodies, including those that had been supplying fluoridated water, to continue to maintain water services under s130 LGA, Parliament must be taken to have intended to empower them accordingly. Section 69O HA and in particular s69O(3)(c) HA (standards must not include any requirement that fluoride be added to drinking water) were consistent only with a legislative intention that fluoride may be added. Section 69O(3)(c) strongly indicated that Parliament specifically authorised the inclusion of fluoride in drinking water and that the purpose of s69O(3)(c) HA was to avoid any suggestion that Parliament was requiring a drinking water supplier to fluoridate. If Parliament had intended that fluoride would no longer be a permissible additive to drinking water it would be expected to say so explicitly.

The clear legislative intention in the LGA and HA was to continue the status quo allowing local authorities to continue to fluoridate drinking water, subject to compliance with the relevant standards. Attorney-General v Lower Hutt City established the lawful authority to fluoridate water in 1965 under the Municipal Corporations Act 1954. That authority continued under similar legislation at least until the passage of the LGA.

The right guaranteed by s11 NZBORA to refuse to undergo medical treatment did not extend to public health measures such as the fluoridation of drinking water intended to benefit the public at large. It would be a significant step to extend the s11 NZBORA right beyond its application to medical treatment in a therapeutic relationship. Describing a person drinking fluoridated water as “undergoing” medical treatment was inapt. The ordinary and natural meaning of undergoing medical treatment described a process in which something was “done” to a patient in a therapeutic setting. There was a substantial body of research both in New Zealand and elsewhere to support the proposition that the fluoridation of community drinking water had a beneficial effect in reducing the incidence of tooth decay. There was a rational connection between the fluoridation of drinking water and the objective of preventing or reducing tooth decay and the evidence demonstrated that the fluoridation of water was within the range of reasonable alternatives to address the problem of tooth decay. Any infringement of the s11 NZBORA right was a limit prescribed by law for the purposes of s5 NZBORA.

The regulation-making power under s105(1)(i) MA (regulations) expressly authorised the Governor-General by Order in Council to specify that substances “are, or are not,” medicines for the purposes of the MA. The power to specify that substances were not medicines existed regardless of whether the substances would otherwise have been a medicine within the relevant definition. There was nothing improper in the passing of regulations for the purpose of giving certainty to those distributing and using compounds for the purpose of water fluoridation or for the purpose of averting collateral challenges.

As the Regulations were found to be valid, the Medicines Act appeal was moot.

The appeals were dismissed.

  • A Leave is granted to the appellant to adduce further evidence on appeal.

  • B The appeal CA159/2014 is dismissed.

  • C The appellant in CA159/2014 must pay costs to the respondent for a complex appeal on a band A basis with usual disbursements. We allow for second counsel.

  • D The appeals CA615/2014 and CA529/2015 are dismissed.

  • E The appellant must pay the respondent one set of costs in CA615/2014 and CA529/2015 for a standard appeal on a band A basis with usual disbursements.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction

[1]

THE COUNCIL APPEAL (CA159/2014)

[12]

The process of fluoridation

[13]

The legal power to fluoridate

[17]

The Lower Hutt City case

[18]

The Judge's approach

[26]

The arguments on appeal

[30]

The Local Government Act 2002

[32]

The Health Act 1956

[39]

The New Zealand Standards

[50]

Legal power to fluoridate-conclusions

[58]

Is the s 11 right to refuse to undergo medical treatment engaged by the fluoridation of drinking-water?

[60]

The approach in the High Court

[60]

The arguments on appeal

[67]

Analysis

[71]

If the fluoridation of drinking water is medical treatment in terms of s 11, is it possible for an individual to refuse such treatment?

[99]

The application of s 5 of the NZBORA

[100]

Prescribed by law

[101]

If the s 11 right is infringed, is the fluoridation of drinking water a reasonable limit that can be demonstrably justified in a free and democratic society for the purposes of s 5?

[109]

The Judge's approach

[109]

The standard of review

[111]

The evidence

[116]

Dr Whyman

[117]

Dr Haisman-Welsh

[128]

Dr Simmons

[130]

Ms Pryor

[135]

Dr Menkes

[138]

Dr Thiessen

[139]

Mr Litras

[144]

Subsequent reports

[147]

The Gluckman/Skegg report

[148]

The Cochrane Review

[149]

The s 5 analysis - conclusions

[151]

Does fluoridation of drinking water serve a purpose sufficiently important to justify curtailing the s 11 right?

[152]

Rational connection

[153]

Is the fluoridation of drinking water no more than is reasonably necessary to achieve its purpose?

[156]

Whether the limit is proportionate to the objective

[160]

Council appeal - conclusions and result

[165]

THE REGULATIONS APPEAL (CA529/2015)

[167]

Introduction

[167]

The background facts

[168]

The regulating power

[176]

The Judge's approach

[179]

Analysis

[189]

Error of law

[189]

Improper purpose

[192]

The costs order made in the High Court in relation to the Regulations appeal

[203]

Background

[203]

Conclusion on costs issue

[205]

THE MEDICINES ACT APPEAL (CA615/2014)

[207]

Summary

[214]

Result

[215]

Introduction
1

The fluoridation of water has been undertaken in New Zealand since 1954 with the aim of improving dental health. Currently, 48 per cent of the New Zealand population lives in communities with water fluoridation programmes. Other countries have similar programmes but the practice is not universally adopted.

2

These three appeals are brought by New Health New Zealand Inc, an incorporated society opposed to the fluoridation of water supplies. New Health's view is that fluoridation removes freedom of choice by the consumer, is potentially harmful to health, and is not an effective way of providing fluoride as a means of preventing dental decay.

3

New Health has been pursuing litigation in relation to fluoridation on several fronts. First, in judicial review proceedings it sought declarations that the decision of the South Taranaki District Council to add fluoride to the water supplies in Patea and Waverley was ultra vires and in breach of s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA). This section provides that everyone has the right to refuse to undergo medical treatment. Rodney Hansen J dismissed New Health's application. 1 The first appeal is against that decision. We refer to it as the Council appeal.

4

The other two appeals arise from separate proceedings brought by New Health in the High Court. In the first, Collins J dismissed an application by New Health for declarations that two compounds added to water supplies for fluoridation purposes,...

To continue reading

Request your trial
2 cases
  • New Health New Zealand Inc. v South Taranaki District Council and another
    • New Zealand
    • Supreme Court
    • 27 Junio 2018
    ...cent. Fluoridation occurred for the first time in New Zealand in 1954. 2 New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017] 2 NZLR 13 (Randerson, Wild and French JJ) [ New Health (CA)]. 3 New Health New Zealand Inc v South Taranaki District Council [2017] ......
  • New Health New Zealand Incorporated v South Taranaki District Council
    • New Zealand
    • Supreme Court
    • 27 Junio 2018
    ...and the Medicines Act appeals. Judgment on the third set of 1 2 3 New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017] 2 NZLR 13 (Randerson, Wild and French JJ) [New Health New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, [2014] 2......