New Health New Zealand Incorporated v South Taranaki District Council

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 27 September 2016
• Neutral Citation: [2016] NZCA 462
• Docket Number: CA159/2014 CA529/2015
• Court: Court of Appeal
• Date: 27 September 2016

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

[2016] NZCA 462

Court:

Randerson, Wild and French JJ

CA159/2014

CA615/2014

CA529/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

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).

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

• 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, namely hydrofluorosilicic acid (HFA) and sodium silico fluoride (SSF), were medicines in terms of the Medicines Act 1981. 2 Collins J found that HFA and SSF were not medicines.

5 While the Judge said he was confident this conclusion was correct, he suggested the Ministry of Health might wish to consider recommending a regulation to exempt HFA and SSF from the definition of medicines under the Medicines Act.

6 The suggestion made by Collins J was adopted. The Medicines Amendment Regulations 2015 were promulgated with effect from 30 January 2015. HFA and SSF were declared not to be medicines for the purposes of the Medicines Act. New Health then brought judicial review proceedings challenging the validity of the amending regulations on a variety of grounds. Kés J dismissed New Health's application. 3

7 New Health appeals against the judgments of both Collins J and Kés J. We refer to these appeals as the Medicines Act appeal and the Regulations appeal respectively. The Medicines Act appeal was due to be heard before Kés J had determined the application to review the validity of the amending regulations. The Medicines Act appeal was adjourned until after the outcome of the proceedings before Kés J was known. This Court was satisfied the Medicines Act appeal would be moot if the amending regulations were found to be valid. 4

8 The Regulations appeal includes a challenge to a costs order made against New Health in the High Court.

9 New Health now seeks to advance all three appeals, which, for convenience, were heard together. Counsel filed an agreed list of issues, which we have reduced for simplicity. The issue in the Council appeal is whether the Judge was correct to find that:

• (a) The Council had statutory authority to fluoridate the water supplies for Patea and Waverley.

• (b) The fluoridation of water is not medical treatment for the purposes of s 11 of the NZBORA.

• (c) If the right to refuse medical treatment is engaged, fluoridation is a demonstrably justified limit prescribed by law in terms of s 5 of the NZBORA.

10 As to the other two appeals, we propose to consider the Regulations appeal first. We do so because, if we were to uphold the validity of the amending regulations, the only real issue in the Medicines Act appeal is whether the judgment of Collins J is thereby rendered moot.

11 Despite opposition by the Council, we grant leave to New Health to adduce further evidence on appeal in the form of a report known as the Cochrane Review 2015. We discuss below the extent to which weight may be given to this report.

THE COUNCIL APPEAL (CA159/2014)

12 At the outset we note two points about the Council appeal. First, the Court is concerned with the lawfulness of the process of fluoridation. The merits of the process are at issue only in a broad sense as an aspect of New Health's argument that the process breaches the NZBORA. Secondly, we note that earlier this year the Government signalled its intention to shift the decision whether to fluoridate drinking water supplies from local authorities to District Health Boards.

The process of fluoridation

13 It is not in dispute that fluoride occurs naturally as a trace element in water throughout the world but at varying levels. In New Zealand fluoride occurs at relatively low levels (usually below 0.3 ppm). 5 Fluoridation is the process of increasing the level of fluoride in the water supply to between 0.7 and 1.0 ppm by the addition of the...