New Health New Zealand Inc. v South Taranaki District Council

• Jurisdiction: New Zealand
• Judge: Rodney Hansen J
• Judgment Date: 07 March 2014
• Neutral Citation: [2014] NZHC 395
• Docket Number: CIV-2013-443-107
• Court: High Court
• Date: 07 March 2014

BETWEEN

New Health New Zealand Inc

Plaintiff

and

South Taranaki District Council

Defendant

[2014] NZHC 395

CIV-2013-443-107

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

Application for declarations that the defendant council's decision to add fluoride to the Patea and Waverley water supplies was ultra vires and in breach of s11 New Zealand Bill of Rights Act 1990 (right to refuse to undergo medical treatment) and an order quashing the decision to do so — whether the defendant's actions were lawful — whether the addition of fluoride was lawful under the general power of competence of the Local Government Act 2002 and Health Act 1956 — whether the addition of fluoride constituted a medical treatment and if yes, whether consumption and delivery took place in circumstances which effectively denied a consumer the ability to refuse such treatment.

Council:

LM Hansen for Plaintiff

DJS Laing and HP Harwood for Defendant

AM Powell for Attorney-General as intervenor

JUDGMENT OF Rodney Hansen J

TABLE OF CONTENTS

Introduction	[1]
The process of fluoridation	[6]
The legal power to fluoridate	[9]
Local Government Act 2002	[17]
Health Act 1956	[26]
Fluoridation is ultra vires	[37]
Capacity	[38]
Regulatory power	[41]
Water as medicine	[44]
New Zealand Bill of Rights
Genesis of s 11	[47]
Medical treatment	[54]
International case law	[59]
Ireland	[62]
Switzerland	[64]
Canada	[67]
United States of America	[70]
Section 11 and fluoridation - discussion
Medical treatment	[79]
Refusal	[91]
Section 5 - justified limitation	[96]
Prescribed by law	[98]
Test	[101]
Importance of the purpose	[102]
Rational connection	[104]
No more than reasonably necessary	[106]
Whether the limit is proportionate to the objective	[110]
Failing to take into account relevant considerations	[112]
Summary and conclusion	[116]

Result [121]

Introduction

1 In 1945 in Grand Rapids, Michigan, fluoride was added to public drinking water supplies for the first time. Its purpose was to promote dental health by reducing the incidence of tooth decay. The use of fluoride by this means spread rapidly, including to New Zealand. Water fluoridation occurred for the first time in Hastings in 1954. Currently 48 per cent of the New Zealand population live in communities with water fluoridation programmes.

2 On 10 December 2012, the South Taranaki District Council (the Council) decided by a vote of 10 to 3 to add fluoride to the water supplies of Patea and Waverley, both small towns in South Taranaki. The plaintiff (New Health), an organisation with the stated aim of advancing and protecting the best interests and health freedom of consumers, challenges the decision. It does so on the grounds that:

• (a) The Council does not have the legal power to add fluoride to its water supply for therapeutic purposes;

• (b) Adding fluoride for therapeutic purposes constitutes a breach of the right to refuse to undergo medical treatment contained in s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA) and the breach:

  • (i) Has not been prescribed by law; and

  • (ii) Is an unjustified and disproportionate limitation on the right in s 11.

• (c) In deciding to add fluoride to the water supplies, the Council failed to take into account a number of mandatory relevant considerations.

3 New Health seeks declarations that the decision to add fluoride to the Patea and Waverley water supplies is ultra vires and in breach of the NZBORA and an order quashing the decision.

4 The Council maintains its actions were lawful and did not involve any breach of the NZBORA. The Attorney-General was granted leave to intervene and to be heard on the questions of whether fluoridation of a public water supply is medical treatment for the purpose of s 11 of NZBORA and, if so, whether it limits the right of any person under s 11 of NZBORA.

5 It is important to make it clear at the outset that this judgment is not required to pronounce on the merits of fluoridation. The issues I am required to address concern the power of a local body to fluoridate drinking water supply. That is a legal question which does not require me to canvass or express a view on the arguments for and against fluoridation.

The process of fluoridation

6 Fluoride in the form of calcium fluoride occurs naturally as a trace element in water throughout the world but at widely varying levels. In New Zealand fluoride occurs at relatively low levels (below 0.3 ppm). Fluoridation is the process of increasing the level of fluoride in the water supply to between 0.7 ppm and 1.0 ppm by the addition of a fluoride-releasing compound, either sodium silico fluoride (SFS) or hydrofluorosilicic acid (HFA).

7 Proponents of fluoridation believe it improves public health by reducing the incidence of dental caries or tooth decay by promoting the mineralisation of tooth enamel. It is argued that it helps to overcome social inequality by ensuring that children are not disadvantaged by poor dental hygiene in their homes. For many years it was believed that it worked systemically. It is now generally accepted that it works topically.

8 There is ongoing debate as to the effectiveness of fluoridation and whether it poses any risks to human health. The view of many public health authorities and medical science bodies, among them the Ministry of Health and the New Zealand Dental Association, is that fluoridation is beneficial and safe. On the other hand, there are a number of organisations and individuals who oppose fluoridation on a range of grounds, among them that it is ineffective, unsafe and an infringement of civil liberties.

The legal power to fluoridate

9 The power to fluoridate relied on by the Council is derived from the Local Government Act 2002 (LGA 2002) and the Health Act 1956. The Council says that the power to fluoridate comes under the general power of competence in the LGA 2002 and is consistent with its obligation to promote public health under s 23 of the Health Act.

10 The LGA 2002 replaced the Local Government Act 1974 (LGA 1974). It constituted a comprehensive reform of local government legislation. The LGA 1974 and its predecessor, the Municipal Corporations Act 1954, were highly prescriptive. The powers and obligations of local authorities' functions, including water supply, were spelt out in detail. The approach in the LGA 2002 was described in the explanatory note to the Local Government Bill 2001 as a: 1

… shift from a detailed and prescriptive style of statute (that focuses councils on compliance with detailed legislative rules) to a more broadly empowering legislative framework that focuses councils on meeting the needs of their communities.

11 The power of a local authority to fluoridate water supplies under the 1954 Act was challenged by two ratepayers in Attorney-General v Lower Hutt City. 2 Section 240(1) of the 1954 Act provided:

(1) The council may construct waterworks for the supply of pure water for the use of the inhabitants of the district, …

12 McGregor J at first instance held it would be straining the language of the Act to hold that by implication the legislature had empowered the city to add fluoride to its water supply. He said such an act seems to be neither incidental nor

consequential to the supply of pure water, where the water is already pure. 3 However, he found that fluoridation was within the powers of the Council under s 288 of the 1954 Act which conferred separate powers on councils to do all things necessary from time to time for the preservation of public health and convenience and for carrying into effect the provisions of the Health Act 1956

13 By a majority the Court of Appeal upheld the judgment of McGregor J holding, however, that s 240 empowered the local authority to fluoridate the water. North P said 4

… the word “pure” in the context in which it appears in our statute is a relative term, and does not refer to the water being chemically pure, then I see no reason why a local body, so long as it acts in good faith, should not be entitled to take any reasonable step it may think proper to improve the quality of its available water supply as water. I agree that it must not attempt to introduce a substance which is foreign to the nature of water, for medical or other purposes. For this would render the water “impure”. But short of anything like that, in my opinion a local body is entitled to change the concentration of the various elements which are in solution in the water available to it if it is advised that that course is desirable. Local authorities are public bodies entrusted with the powers and duties for public purposes and the election of their members is in the hands of the inhabitants of the district. This being the position, in my opinion the power contained in s 240 should not be narrowly construed.

14 After referring to evidence that New Zealand soils are deficient in fluoride, North P continued: 5

In these circumstances, in my opinion the respondent was lawfully entitled to install a treatment plant for the purpose of adding in controlled proportions fluoride to its water supply. In taking this step the respondent was doing no more than rectifying a deficiency in the water which was available to it and was acting reasonably on expert advice which had satisfied it that this step was desirable in the public interest.

15 The Privy Council upheld the decision of the Court of Appeal, agreeing that the power to fluoridate was conferred by s 240 of the 1951 Act. Their Lordships said: 6

Their...