NZ Centre for Human Rights Law, Policy and Practice | 29 May 2015
When fluoride was added to the water supplies of two Taranaki towns not everyone was happy. The District Council had relied on powers in the Local Government Act 2002 and the Public Health Act 1956. But the plaintiff – an advocacy group – argued that the decision was ultra vires, unlawful, and that it breached s 11 of NZBORA – the “right to refuse medical treatment”: New Health NZ Inc v South Taranaki District Council [2014] NZHC 395 Read more
Hansen J dismissed all arguments and found for the Council.
Ultra vires
Hansen J held that there was an implied power to fluoridate in the LGA 2002. That had been the result in a 1964 case, Attorney-General v Lower Hutt City, which went to the Privy Council. The relevant provisions in the old Municipal Corporations Act 1954 had been carried over into the LGA 1974, the predecessor to the 2002 Act. And the semantic change in terminology from “pure water” to “drinking water” was not material; if anything it was more accurate. Moreover in requiring local bodies (some of whom had been supplying fluoridated water) to “maintain” their services, Parliament implied an intention to empower local authorities to make such a decision.
Hansen J also identified an implicit power to fluoridate in the Public Health Act 1956. Part 2A has provisions about promoting the supply of safe and wholesome drinking water. They include duties on suppliers to take all practicable steps to comply with drinking water standards issued by the Minister. One provision states that any standard issued or adopted must not include a requirement that fluoride be added to drinking water. This stipulation, reasoned Hansen J, was consistent with a parliamentary intention to authorise fluoridation by local government. It fits with an expectation that a decision to fluoridate is “quintessentially a function of local government”.
On this ground, Hansen J also rejected a number of the plaintiff’s counter-arguments. New Health alleged, first, that the power of local authorities is delimited by what an individual or corporate can lawfully do. Hansen J said this principle was no more than a starting point. Fluoridation was a physical act that took place in the course of a local authority providing one of its core services. Finally, Hansen J rejected the contention that fluoridated water required the consent of the Minister of Health under the Medicines Act. Water is not a food for the purpose of the Act, as was authoritatively determined in Diet Tea Company Limited v Attorney-General.
Section 11 of the NZBORA
Section 11 states that “everyone has the right to refuse to undergo medical treatment”. This was clearly applicable to Council because it provides a “public function”. The Judge considered there to be two significant questions: first, the meaning and scope of ‘medical treatment’ (we’ll call that “defining the right”); and, second, the nature of the obligation on the state not to interfere with the right to refuse (we’ll call that the “reasonable limits” question).
A survey of the international authorities showed a range of answers to these questions. Courts had found that fluoridation fell short of ‘medical treatment’, but for different reasons. The Irish Supreme Court in Ryan v Attorney-General stressed that the process merely involved raising the levels of a natural element to that found in wholesome water. In Quiles v City of Boynton Beach the Florida District Court of Appeal (4th Circuit) relied on the fact that the legislation did not compel anyone to drink the water. In the Canadian case Millership v British Columbia the court regarded fluouridation as a drug or a medicine, but such a minimal intrusion in to the relevant Charter right (security of the person in s 7) as not to trigger it. Further, in the US case Dowel v City of Tulsa, the court rejected the argument that fluoridation could be distinguished from the addition of chloride to water, in that both processes aimed at public health benefits.
Ultimately, Hansen J found the international jurisprudence of limited assistance, contending that the s 11 provision is unique and raises different issues from the rights relied upon in these cases.
Hansen J did not find it necessary to adjudicate between the range of characterisations of the fluoridation process. While leaning toward the view that it did constitute medical treatment, he did not consider this decisive. In agreement with Dowel, he held that the fluoridation process could not be relevantly distinguished other therapeutic processes such as adding iodine to salt or folic acid to bread. All are therapeutic. Yet he argued this did not require they amount to medical treatment for the purpose of s 11. Here he relied upon the word ‘undergoing’ which, he maintained, suggested “something that is done”. In contrast is the phrase ‘not to be subjected to’ in s 10. Hansen J found that s 11 applies more narrowly to situations involving the direct interference with someone’s body or state of mind. A state or local government public health intervention such as adding fluoride to the water supply would not engage the right. Hansen J considered that it he were to find otherwise he would be granting individuals a power of veto over all public health initiatives. He concluded that fluoridation did not fall within the purview of medical treatment for the purpose of s 11.
Having reached this conclusion, it was unnecessary to consider the alternative submission, that the s 11 right was not engaged since no one was compelled to drink the water. Contra Quiles, he did not think a consumer could realistically avoid fluoridated treatment. In any case, he felt that such matter was dealt with under a s 5 analysis.
In case he was wrong in the “definitional point” and s 11 was engaged, he undertook a “reasonable limits” analysis, applying the Hansen test for assessing reaosnableness. He was satisfied that the health benefits of fluoridation were a sufficiently important objective, that there was a rational connection between the process and the objective, and that the health benefits outweighed the minor (admitted) risk of fluorosis. While admitting there were other means of reaching this objective, such as good dental hygiene and regular dental check-ups, he had no problem finding that fluoridation was within the range of reasonable alternatives available to Parliament.
