[Full judgment: New_Health_v_Taranaki.pdf]

IN THE HIGH COURT OF NEW ZEALAND
NEW PLYMOUTH REGISTRY
CIV-2013-443-107
[2014] NZHC 395

BETWEEN NEW HEALTH NEW ZEALAND INC
Plaintiff
AND SOUTH TARANAKI DISTRICT COUNCIL
Defendant

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. [...]

Summary and conclusions

[116] New Health has challenged the Council’s decision to fluoridate the drinking water of Patea and Waverley on the grounds that:

(a) There was no legal power to do so.

(b) If there was power, its exercise by the Council was a breach of the right to refuse medical treatment in s 11 of NZBORA.

(c) In making the decision, the Council failed to take into account relevant considerations.

[117] I have rejected all grounds of challenge. I have concluded that there is implied power to fluoridate in the LGA 2002, as there had been in the antecedent legislation, the Municipal Corporations Act 1954 and the LGA 1974. The Health Act confirms that fluoride may be added to drinking water in accordance with drinking water standards issued under that Act. The power to fluoridate drinking water is not a regulatory function; it does not require express authority. Nor does a decision to fluoridate require the consent of the Minister of Health under the Medicines Act as water is not a food for the purpose of that Act.

[118] I have concluded that the fluoridation of water is not medical treatment for the purpose of s 11 of NZBORA. While I accept that fluoridation has a therapeutic purpose, I conclude that the means by which the purpose is effected does not constitute medical treatment. I am of the view that medical treatment is confined to 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. I see no material distinction between fluoridation and other established public health measures such as chlorination of water or the addition of iodine to salt.

[119] In the event that, contrary to my view, fluoridation does engage the right to refuse medical treatment, I discuss whether in terms of s 5 of NZBORA the power to fluoridate is a justified curtailment of the right to refuse medical treatment. I conclude that it is. The evidence relied on by the Council shows that the advantages of fluoridation significantly outweigh the mild fluorosis which is an accepted outcome of fluoridation.

[120] Finally, I examine whether the Council failed to take into account relevant considerations in reaching its decision. I am of the view that the Council was not required to take into account the controversial factual issues relied on by New Health. There is, nevertheless, a plenitude of evidence to show that the Council carefully considered the detailed submissions presented and reached its decision after anxious consideration of the evidence and careful deliberation.

Result

[121] New Health’s application to review the Council’s decision fails.

[Full judgment: New_Health_v_Taranaki.pdf]

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