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Last Updated: 29 January 2018
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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
|
Hearing:
|
25-26 November 2013
|
Council:
|
LM Hansen for Plaintiff
DJS Laing and HP Harwood for Defendant
AM Powell for Attorney-General as intervenor
|
Judgment:
|
7 March 2014
|
JUDGMENT OF RODNEY HANSEN J
This judgment was delivered by me on 7 March 2014 at 11.30 a.m., pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ...............................
Solicitors: Wynn Williams Lawyers, Christchurch
Simpson Grierson, Wellington
Crown Law, Wellington
NEW HEALTH NEW ZEALAND INC v SOUTH TARANAKI DISTRICT COUNCIL [2014] NZHC 395 [7 March 2014]
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
[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
1 Local Government Bill 2001 (191-1) (Explanatory Note).
2 Attorney-General v Lower Hutt City [1964] NZLR 438 (HC) and (CA).
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 said4
... 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 Lordships are of opinion that an act empowering local authorities to
supply “pure water” should receive a “fair large and
liberal” construction as
3 At 442.
4 At 456.
5 At 456.
6 Attorney-General v Lower Hutt City [1965] NZLR 116 (PC) at 124-125
provided by s 5(j) of the Acts Interpretation Act 1924. They are of opinion
that as a matter of common sense there is but little
difference for the relative
purpose between the adjectives “pure” and “wholesome”.
Their Lordships think
it is an unnecessarily restrictive construction to
hold (as did McGregor J) that, because the supply of water was already
pure
there is no power to add to its constituents merely to provide medicated pure
water, i.e. water to which an addition is made
solely for the health of the
consumers. The water of Lower Hutt is no doubt pure in its natural state but it
is very deficient in
one of the natural constituents normally to be found in
water in most parts of the world. The addition of fluoride adds no impurity
and
the water remains not only water but pure water and it becomes a greatly
improved and still natural water containing no foreign
elements. Their
Lordships can feel no doubt that power to do this is necessarily implicit in the
terms of s 240 and that the respondent
corporation is thereby empowered to make
this addition and they agree with the observations of North P and McCarthy J
already quoted.
They think too that it is material to note that, while their
Lordships do not rely on s 288, nevertheless that section makes it
clear that
the respondent corporation is the health authority for the area and s 240 must
be construed in the light of that fact;
that is an additional reason for giving
a liberal construction to the section.
Their Lordships think it right to add that had the natural water of Lower
Hutt been found to be impure it would of course have been
the duty of the
respondent corporation to add such substances as were necessary to remove or
neutralise those impurities; but that
water having been made pure they can see
no reason why fluoride should not be added to the water so purified in order to
improve
the dental health of the inhabitants.
The Privy Council added that, having found that s 240 provided the authority
to fluoridate, it was unnecessary to decide whether s
288 or s 23 of the Health
Act by themselves empowered the corporation to fluoridate the water.
[16] Section 240 of the 1954 Act was superseded by s 379 of the Local Government Act 1974 (the 1974 Act). Although not identically worded, it is accepted that the two provisions are not materially different and it may be inferred that the power to fluoridate was carried over into the 1974 Act. However, as noted earlier, the empowering provisions of the LGA 2002 are materially different. New Health says the Lower Hutt City case no longer applies. Ms Hansen also relies on the intervening passage of NZBORA and scientific evidence which, it is said, no longer supports the factual conclusion of the Privy Council that the addition of fluoride adds no impurity to the water.
Local Government Act 2002
[17] It is necessary to set out the provisions of the LGA 2002 which bear
on the responsibilities and powers of local authorities.
The purpose of the act
is set out in s 3 which reads as follows:
3 Purpose
The purpose of this Act is to provide for democratic and effective local
government that recognises the diversity of New Zealand communities;
and, to
that end, this Act—
(a) states the purpose of local government; and
(b) provides a framework and powers for local authorities to decide
which activities they undertake and the manner in which
they will undertake
them; and
(c) promotes the accountability of local authorities to their
communities; and
(d) provides for local authorities to play a broad role in meeting the
current and future needs of their communities for good-
quality local
infrastructure, local public services, and performance of regulatory
functions.
[18] Section 10 amplifies s 3(a) by setting out the purpose of local
government:
10 Purpose of local government
(1) The purpose of local government is—
(a) to enable democratic local decision-making and action by, and
on behalf of, communities; and
(b) to meet the current and future needs of communities for
good-quality local infrastructure, local public services, and performance
of
regulatory functions in a way that is most cost-effective for households and
businesses.
(2) In this Act, good-quality, in relation to local infrastructure,
local public services, and performance of regulatory functions,
means
infrastructure, services, and performance that are—
(a) efficient; and
(b) effective; and
(c) appropriate to present and anticipated future circumstances.
[19] The role of a local authority and the core services to be
considered in performing that role are to be found in
ss 11 and 11A which
provide as follows:
11 Role of local authority
The role of a local authority is to—
(a) give effect, in relation to its district or region, to the purpose of
local government stated in section 10; and
(b) perform the duties, and exercise the rights, conferred on it by or under
this Act and any other enactment.
11A Core services to be considered in performing role
In performing its role, a local authority must have particular regard to the
contribution that the following core services make to
its communities:
(a) network infrastructure: (b) public transport services:
(c) solid waste collection and disposal:
(d) the avoidance or mitigation of natural hazards:
(e) libraries, museums, reserves, recreational facilities, and
other community infrastructure.]
Network infrastructure is defined in s 197(2) to include the provision of
water.
[20] The status and powers of a local authority are set out in s 12 which
relevantly provides:
12 Status and powers
(1) A local authority is a body corporate with perpetual
succession.
(2) For the purposes of performing its role, a local authority
has—
(a) full capacity to carry on or undertake any activity or business,
do any act, or enter into any transaction; and
(b) for the purposes of paragraph (a), full rights, powers, and
privileges.
(3) Subsection (2) is subject to this Act, any other enactment, and the general law.
(4) A territorial authority must exercise its powers under this section
wholly or principally for the benefit of its district.
...
[21] Local authorities are required to act in accordance with the principles
set out in s 14 which relevantly provides:
14 Principles relating to local authorities
(1) In performing its role, a local authority must act in accordance
with the following principles:
...
(b) a local authority should make itself aware of, and should have
regard to, the views of all of its communities; and
(c) when making a decision, a local authority should take account of
–
|
(i)
|
the diversity of the community, and the community’s interests, within
its district or region; and
|
(ii)
|
the interests of future as well as current communities; and
|
|
(iii)
|
the likely impact of any decision on the interests referred to in
subparagraphs (i) and (ii):
|
|
(d)
|
a loc
|
al authority should provide opportunities for
|
Maori to contribute to its decision-making
processes:
...
(e) in taking a sustainable development approach, a local authority
should take into account –
(i) the social, economic, and cultural interests of people and communities;
and
(ii) the need to maintain and enhance the quality of the environment;
and
(iii) the reasonably foreseeable needs of future generations.
[22] Part 7 of LGA 2002 sets out specific obligations and restrictions on local authorities. The delivery of water services is specifically referred to in subpara (b)
of s 123. “Water services” is defined in s 124 as “water
supply and waste water services”. “Water
supply” is:
The provision of drinking water to communities by network reticulation to the
point of supply of each dwellinghouse and commercial
premise to which drinking
water is supplied.
[23] Subpart 2 of Part 7 then sets out the obligations and restrictions on
local authorities in relation to the provision of water
services. Section 130
relevantly provides:
130 Obligation to maintain water services.
(1) This subpart applies to a local government organisation that
provides water services to communities within its district
or region
–
(a) at the commencement of this section:
(b) at any time after the commencement of this section.
(2) A local government organisation to which this section applies must
continue to provide water services and maintain its
capacity to meet its
obligations under this subpart.
...
[24] It is of note that what was described as “pure water” in the 1974 Act is referred to as “drinking water” in the 2002 Act. I agree with Mr Laing that the change would appear to be largely semantic though arguably “drinking water” is more accurate than “pure water”. As the Privy Council recognised in Attorney- General v Lower Hutt City, water could never be literally pure in the sense of being H2O distilled of all other ingredients.7 That would, said their Lordships, “indeed be
a most unappetising and unsatisfactory liquid”.8
[25] The change in terminology could not be understood as indicating an intention on the part of Parliament to narrow a local authority’s power in relation to the supply of water. There is no obvious reason why the implied power to fluoridate found to exist in the 1956 and 1974 Acts should not also be implied in the 2002 Act. On the contrary, by requiring local bodies who had been supplying (in some cases)
fluoridated water to maintain water services, Parliament must be
taken to have
7 Attorney-General v Lower Hutt City, above n 6.
8 At 122.
intended to empower them accordingly.9 This is confirmed by the
Health Act which makes detailed provision for the supply of drinking water and
explicitly recognises that fluoride may be added.
[26] The supply of water services is expressly subject to the Health Act
1956 which confers powers and imposes duties on local authorities in respect of
public health including the provision of drinking water.
Section 23
provides:
Subject to the provisions of this Act, it shall be the duty of every local
authority to improve, promote, and protect public health
within its district,
and for that purpose every local authority is hereby empowered and
directed—
(a) To appoint all such Environmental Health Officers and other
officers and servants as in its opinion are necessary for the
proper discharge
of its duties under this Act:
(b) To cause inspection of its district to be regularly made
for the purpose of ascertaining if any nuisances, or
any conditions likely to
be injurious to health or offensive, exist in the district:
(c) If satisfied that any nuisance, or any condition likely to be
injurious to health or offensive, exists in the district,
to cause all proper
steps to be taken to secure the abatement of the nuisance or the removal of the
condition:
(d) Subject to the direction ... of the Director-General, to enforce
within its district the provisions of all regulations
under this Act for the
time being in force in that district:
(e) To make bylaws under and for the purposes of this Act or any other
Act authorising the making of bylaws for the protection
of [public
health]:
(f) To furnish from time to time to the Medical Officer of Health such
reports as to diseases, drinking water, and sanitary conditions
within its
district as the Director-General or the Medical Officer of Health may
require.
– 258.
[27] Part 2A of the Health Act, introduced in 2007, contains detailed
provisions directed to promoting the supply of safe and wholesome drinking
water.10 They include duties imposed on the supplier of drinking
water to take all practicable steps to comply with drinking water
standards.
[28] Section 69V of the Health Act relevantly provides:
69V Duty to take all practicable steps to comply with drinking-water
standards
(1) Every drinking-water supplier must take all practicable
steps to ensure that the drinking water supplied by that
supplier complies with
the drinking-water standards.
(2) A drinking-water supplier complies with subsection (1) if
the supplier implements those provisions of the
supplier's approved water
safety plan relating to the drinking-water standards.
...
[29] Section 69G defines “drinking water” as:
drinking water—
(a) means—
(i) water that is potable; or
(ii) in the case of water available for supply, water that is—
(A) held out by its supplier as being suitable for drinking and other
forms of domestic and food preparation use, whether in
New Zealand or overseas;
or
(B) supplied to people known by its supplier to have no reasonably
available and affordable source of water suitable for drinking
and other forms
of domestic and food preparation use other than the supplier and to be likely to
use some of it for drinking and
other forms of domestic and food preparation
use; but
(b) while standards applying to bottled water are in force under the Food
Act 1981, does not include—
(i) any bottled water that is covered by those standards; or
(ii) any bottled water that is exported; and
10 Health Act 1956, s 69A(1).
(c) to avoid doubt, does not include any water used by animals or for
irrigation purposes that does not enter a dwellinghouse
or other building in
which water is drunk by people or in which other domestic and food preparation
use occurs.
[30] Potable is defined as:
Potable, in relation to drinking water, means water that does not
contain or exhibit any determinands to any extent that exceeds
the
maximum acceptable values (other than aesthetic guideline values) specified in
the drinking-water standards.
[31] Determinand is defined as:
(a) a substance or organism in water in circumstances where the extent
to which any water contains that substance or organism
may be determined or
estimated reasonably accurately; or
(b) a characteristic or possible characteristic of water in
circumstances where the extent to which any water exhibits that
characteristic
may be determined or estimated reasonably accurately
[32] Fluoride is a determinand; the extent to which it is contained in
water can be accurately determined. The definition of
“potable”
permits drinking water to contain a determinand to the “maximum acceptable
value” which is defined
in s 69G as:
[33]
|
Drin
69O
|
ing water standards are issued pursuant to s 69O which
provides:
Minister may issue, adopt, amend, or revoke
drinking-water
|
|
|
standards
|
|
(1)
|
The Minister may, by written notice,—
|
|
(a)
|
issue or adopt standards applicable to drinking water; and
|
|
(b)
|
revoke or amend any existing standards.
|
|
(2)
|
Standards issued or adopted under this section may, without
limitation, specify or provide for all or any of the following:
|
|
|
(a) requirements for drinking water safety (including requirements
relating to the transportation of raw water or drinking
water):
|
|
|
(b) requirements for drinking water composition, including—
|
In relation to a determinand, means a value stated in the drinking-water
standards as the maximum extent to which drinking water may
contain or exhibit
that determinand without being likely to present a significant risk to an
average person consuming that water
over a lifetime.
k
(i) maximum amounts of substances or organisms or contaminants or
residues that may be present in drinking water; and
(ii) maximum amounts of substances that may be present in
drinking water; and
(iii) maximum acceptable values for chemical, radiological,
microbiological, and other characteristics of drinking water:
...
(3) Standards issued or adopted under this section—
(a) may include guideline values for aesthetic determinands for
avoiding adverse aesthetic effects in drinking water; and
(b) may contain different provisions for different categories of bulk
supplier, networked supplier, designated port or airport,
or water carrier, or
different provisions for each class of drinking-water supplier; but
(c) must not include any requirement that fluoride be added to
drinking water.
...
[34] By s 69P the Minister is required to carry out a process of
consultation for three years before issuing or adopting drinking
water standards
unless there is urgency or otherwise as provided in s 69P(2).
[35] The drinking water standard issued pursuant to s 69O specifies the
maximum acceptable value for fluoride is 1.5 ppm.11 I was told this
is significantly higher than the naturally occurring fluoride level in New
Zealand water supplies which is usually
between 0.1 and 0.3 ppm. The standard
includes the following comment in relation to fluoride:
For oral health reasons, the Ministry of Health recommends that the fluoride
content for drinking-water in New Zealand be in the range
of 0.7 - 1.0 mg/L;
this is not a MAV.
It follows that water containing fluoride at a level less than the
maximum acceptable
value will
be potable and come within the definition of “drinking
water”.
[36] The Health Act does not expressly authorise the addition of fluoride to drinking water but it plainly contemplates that it may be. The stipulation in s
69O(3)(c) that standards must not include any requirement that fluoride be
added to drinking water is consistent only with a legislative
intention that
fluoride may be added. If the intention was that fluoride could not be added,
the provision would be redundant.
This is confirmed by the report of
the Select Committee which considered the Bill which contained the following
passage:12
Issue, adoption, amendment and revocation of drinking-water standards
– new clause 69O
New clause 69O sets out the process by which the Minister may issue, adopt,
amend, or revoke drinking-water standards. Although new
clause 69O or the
standards were never intended to enable the mandatory fluoridation of water, in
theory it is possible that they
might be applied in this way. To prevent such a
possibility we recommend insertion of a new subclause (3)(c).
Subparagraph (3)(c) has the purpose of countering any suggestion that the
inclusion of fluoride as a contaminant in drinking water
standards may be
interpreted as requiring a drinking-water supplier to fluoridate. This is
consistent with the expectation that
such decisions are quintessentially a
function of local government.13
Fluoridation is ultra vires
[37] The LGA 2002 and the Health Act, separately and in combination,
appear to establish a clear legislative mandate for local authorities to add
fluoride to drinking
water supplies. Ms Hansen, however, challenged that
interpretation, arguing that:
(a) The power of “full capacity” is limited to what
an individual or corporate can lawfully do which
does not extend to
adding a compound to the water supply for therapeutic purposes.
(b) Fluoridation is akin to a regulatory function and requires
express authorisation.
12 Health (Drinking Water) Amendment Bill 2006 (52-2) (Select Committee Report) at 5.
13 See, for example, s 10 at [18] above.
Additionally, Ms Hansen argued that fluoridated water could not be supplied
without the consent of the Minister of Health under the
Medicines Act
1981.
Capacity
[38] The submission that the power of local authorities is delimited by what an individual or corporation can do draws on the report of the Select Committee in relation to the Local Government Bill 2002. The extract relied on by Ms Hansen reads as follows:14
The intended effect of the general power contained in [section 12] is ...
that in undertaking these activities, local authorities
should, as the starting
point, have the same rights and obligations under general law as individuals
and corporations.
[39] Ms Hansen also referred to the following passage from Brookers,
Local
Government Act Commendary:15
By this section, local authorities are authorised to do anything that
any person or body corporate may do, subject to any other law and an
obligation to act wholly or principally for the benefit of its district (in the
case of territorial
authorities) or all or a significant part of its region (in
the case of a regional council).
[40] The words of qualification in both passages relied on signal,
however, that the powers of individuals and corporations are
no more than a
starting point. The limits on the general power of competence are to be found
in the 2002 Act itself, other legislation
and the general law – see s
12(3).16 As the authors of the Local Government chapter in the
Laws of New Zealand say:17
The significance of the power of general competence should, however, not be
overstated. The power of general competence is subject
to the provisions of the
2002 Act, any other enactment, and the general law. This has a number of
consequences. First the power
of general competence is limited to the corporate
powers of local authorities. It does not extend the regulatory or coercive
powers
of local authorities, not possessed by ordinary citizens. The Rule of Law
continues to require that state powers of such a nature
be expressly conferred
by legislation or the common law. Secondly, there remain some specific
restrictions on the general
(corporate) powers of local authorities in the 2002
Act. For example, local authorities are prohibited
14 Local Government Bill 2002 (191-2) (Select Committee Report) at 3 (emphasis added).
15 Local Government Key Legislation (online ed, Brookers) at LG12.01 (emphasis added).
16 Set out in [20] above.
17 Laws NZ, Local Government at 33.
from borrowing in foreign currency or divesting of water services (except in
certain limited circumstances): paragraph [33].
Regulatory power
[41] It is the case, as noted in the foregoing passage from Laws of New Zealand, that the power of general competence does not extend to regulatory or coercive powers not possessed by ordinary citizens. Such powers must be expressly conferred and are to be found, together with powers of enforcement, in Part 8 of the
2008 Act. They include the power to make by-laws (Subpart 1), enforcement
powers (Subpart 2), powers in relation to private land (Subpart
3) and,
relevantly, powers in relation to water services and trade wastes (Subpart 4)
which include the power to restrict water supply
in response to lawful
activities by the person.
[42] Ms Hansen’s argument requires that a territorial authority could fluoridate only if the power was among those conferred in Part 8. She says that because it is a population-based measure which involves adding a chemical compound to the water supply which must be ingested by all residents, it is regulatory in nature. She refers also to the need for the chemical to be regularly monitored and maintained within specified limits. It is also characterised as coercive since residents are practically unable to opt out of the scheme and are effectively required to consume fluoridated
water.18
[43] The argument cannot be sustained. The addition of fluoride to water quite simply cannot be characterised as a regulatory function. The Concise Oxford English Dictionary defines “regulate” as “control or supervised by means of rules and regulations” and “regulatory” is listed as a derivative of “regulate”.19 In Strachan v Marriott, Blanchard J referred to “regulate” as defined in the Oxford English Dictionary as “to control, govern or direct by rule or regulation”. 20 The fluoridation of water is a physical act that takes place in the course of a local
authority providing one of its core services. It does not involve the
exercise of a
19 Concise Oxford English Dictionary (11th ed (revised), Oxford University Press, Oxford, 2008) at
1212.
20 Strachan v Marriott [1995] 3 NZLR 272 (CA) at 291.
regulatory power. To the extent that a regulatory power exists in relation
to the fluoridation of water, it is conferred on the Ministry
of Health under
the Health Act to set drinking water standards.21
Water as medicine
[44] The argument that fluoridated water requires the consent of the
Minister of Health relies on water coming within the definition
of food for the
purposes of the Medicines Act 1981. The argument proceeds that under the
Medicines Act a food for which therapeutic
claims are made must be consented to
by the Minister as a “new medicine”.
[45] The argument fails at the first hurdle as, for the purpose of the Medicines Act, “food” does not include a drink. This was authoritatively determined in Diet Tea Company Limited v Attorney-General.22 In that case it was accepted that in its natural and ordinary meaning “food” did not include a beverage such as tea. The plaintiff relied on extended definitions of food in the repealed Food and Drug Act
1969 and the Medicines Act 1981 to advance an argument that the definition in
the Medicines Act should be similarly extended. That
was rejected by Henry J
who observed that if that were the intention of the legislature, it would have
been simple to do so either
by using general terms or by referring expressly to
drink.23
[46] Water is not food for the purpose of the Medicines Act.
This part of
Ms Hansen’s argument cannot succeed.
New Zealand Bill of Rights
Genesis of s 11
[47] The NZBORA undoubtedly applies to the Council’s
responsibilities as a supplier of water pursuant to s 3(b) which provides
that:
This Bill of Rights applies only to acts done
–
21 See [33] above.
22 Diet Tea Co Ltd v Attorney-General [1986] 2 NZLR 693 (HC).
23 At 697.
...
(b) by any person or body in the performance of any public function,
power, or duty conferred or imposed on that person or
body by or pursuant to
law.
[48] The plaintiff’s case is that s 11 of NZBORA applies by reason
of the fact that the addition of fluoride to the water
supply is medical
treatment. Section 11 is one of four sections in Part 2, Civil and Political
Rights, grouped under the heading
Life and Security of the Person. They
are:
8 Right not to be deprived of life
No one shall be deprived of life except on such grounds as are established by
law and are consistent with the principles of fundamental
justice.
9 Right not to be subjected to torture or cruel
treatment
Everyone has the right not to be subjected to torture or to cruel, degrading,
or disproportionately severe treatment or punishment.
Every person has the right not to be subjected to medical or
scientific experimentation without that person's consent.
11 Right to refuse to undergo medical treatment
Everyone has the right to refuse to undergo medical treatment.
[49] In his helpful submissions, Mr Powell traced the development of this
part of NZBORA to show that the right to refuse medical
treatment is a subset of
the general human right of privacy; comprising identity, integrity, autonomy and
intimacy. It is to be
contrasted with the rights in ss 9 and 10 of NZBORA
which directly correlate with Article 7 of the International Covenant on Civil
and Political Rights (ICCPR) which provides:
No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular no one shall be subjected
without his
free consent to medical or scientific experimentation.
[50] Professor Manfred Nowak, in his commentary on Article 7 states that the inclusion in that article of the right not to be subject to medical or scientific experimentation without consent was a specific response to the atrocities of the Nazi
concentration camps.24 Professor Nowak explains that the
provision was drafted so as to exclude legitimate medical treatment or
experimentation undertaken
in the interests of patient health. He confirmed
that medical treatment without consent or against the will of the patient is to
be deemed interference with privacy.25
[51] In the draft Bill attached to the White Paper, the right to refuse to undergo medical treatment was initially grouped with the rights now found in ss 9 and 10 under the heading “No Torture or Cruel Treatment”. The Interim Report of the Justice and Electoral Law Subcommittee recommended including those rights with the separate right to life under s 8 under the broader heading “Life and Security of
the Person”. The relevant passage of this report reads:
26
The effect of including the right not to be subjected to medical or
scientific experiments without consent in article 7 [of the ICCPR]
was to
require that any infringement reached the threshold of degrading or inhuman
treatment. If the three rights proposed in article
20 of the Draft Bill of
Rights attached to the White paper had remained in that form, it would have
suggested a similar alignment
of the right to refuse medical treatment to the
torture threshold.
[52] In following the recommendation in the Report, Parliament made clear
that s 11 stands on its own. It does so as an element
of the general right to
privacy and, in particular, the right to bodily integrity which the common law
has always recognised as a
fundamental right.27 In R v B
which did not directly concern s 11, Cooke P referred to the
complainant’s right to have her privacy, dignity and bodily integrity
protected from non-consensual medical procedure as a right which may be wider
than those assured by ss 10 and 11 of NZBORA. 28
[53] In order for fluoridation of drinking-water supplies to breach the s 11 right, the consumption of the flouridated water must amount to medical treatment and delivery must take place in circumstances which effectively deny a consumer the
ability to refuse such treatment. The critical issues arising for
consideration are the
24 Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (2nd revised
N.P. Engel, 2005) at 188.
25 At 387.
26 Interim Report of the Justice and electoral Law Select Committee – Inquiry into the White Paper
– A Bill of Rights for New Zealand (1987) 1 AJHR 8A.
27 Nowak, above n 24, at 387.
meaning or scope of “medical
treatment” and the nature of the obligation on the state
not to interfere with the right to refuse.
Medical treatment
[54] The White Paper made it clear that medical treatment would not be
confined to interventions which interfered with physical
bodily integrity. It
said:29
The word “medical” is used in a comprehensive sense. It would
certainly include surgical, psychiatric, dental, psychological
and similar forms
of treatment.
That expectation has been borne out in court decisions. The New Zealand authorities to which I was referred have held medical treatment for the purpose of s 11 to include confinement in an abortion clinic;30 an assessment of children undertaken by
a doctor for the purposes of an investigation into their safety;31
and the psychological
assessment of a prisoner.32
[55] The purpose of the intervention is relevant. Medical treatment requires a therapeutic purpose. Those of combating, ameliorating or preventing a disease are recognised in the comprehensive definition of medical treatment in Mosby’s Dictionary of Medicine, Nursing and Health Professions:33
A method of combating, ameliorating or preventing a disease, disorder or
injury. Active or curative treatment is designed to care;
palliative treatment
is directed to relieve pain and distress; prophylactic treatment is for the
prevention of a disease or disorder;
causal treatment focuses on the cause of a
disorder; conservative treatment avoids radical measures and procedures;
empirical treatment
uses methods shown to be beneficial by experience; rational
treatment is based on a knowledge of a disease process and the action
of the
measures used. Treatment may be pharmacological, using drugs; surgical,
involving operative procedures; or supportive, building
the patient’s
strength. It may be specific to the disorder; or symptomatic, to relieve
symptoms without effecting a cure.
30 Re a case stated by the Abortion Supervisory Committee [2003] 3 NZLR 87 (HC).
31 M v Attorney-General [2006] NZFLR 181; (2005) 25 FRNZ 137 (HC).
32 Smith v Attorney-General HC Wellington CIV-2005-485-1785, 9 July 2008, Miller J.
[56] It may be doubted whether an intervention for the purpose of diagnosis only is treatment. In A v Counsel of the Auckland District Law Society Randerson J had “some difficulty” with the proposition that a medical examination for diagnostic rather than treatment purposes came within the scope of s 1134. Randerson J accepted, however, that the examination, which would include a urine test, blood test, liver function test and hair follicle test, would be contrary to the fundamental
right to freedom from invasion of physical privacy and bodily integrity. In
Smith v Attorney-General Miller J, while accepting that psychological
treatment is “medical treatment” for the purpose of s 11, observed
that it
would not necessarily be so if the tests were done for risk assessment
purposes. 35
[57] In Cairns v James Temm J suggested that the taking of a blood sample for the purpose of determining paternity may be “medical treatment” for the purposes of s 1136 and Professor Rishworth & ors suggest that the taking of blood samples for paternity or alcohol testing may be medical treatment whose object is the obtaining of a sample or information. 37 However, I prefer the view of Butler and Butler that the determinative factor should be the purpose of the medical intervention.38 In blood alcohol and paternity testing cases the intention is to collect evidence, not to treat a patient. As the learned authors say, the fact that this must be done by a
medical practitioner according to certain protocols is not
decisive.
[58] Although the Council resisted the suggestion that fluoridation has a medical purpose, it cannot be disputed that the process has a therapeutic objective. While there are differences of opinion as to whether the compounds used for fluoridation are to be characterised as a medicine, a dietary supplement, a nutrient (all of which
terms were favoured by various experts) or, as Dr Robin Whyman39
said, recreate
fluoride levels naturally occurring in other parts of the world, fluoridation has a therapeutic medical purpose, preventing tooth decay, and a known pharmacological
effect, namely the mineralisation of tooth enamel. It is the means by
which the
34 A v Counsel of the Auckland District Law Society [2005] 3 NZLR 552 (HC) at [62].
35 Smith v Attorney-General HC Wellington CIV-2005-485-1785, 9 July 2008.
36 Cairns v James [1992] NZFLR 353 (HC).
37 Rishworth et al The New Zealand Bill of Rights (OUP, Melbourne, 2003) at 257.
38 Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary
(LexisNexis, Wellington 2005) at 11.8.5.
39 Clinical Director of Oral Health Services at Hawkes Bay District Health Board and Principal
Dental Officer, Whanganui District Health Board.
therapeutic purpose is achieved that is at the heart of the controversy as to
whether fluoridation qualifies as medical treatment
for the purpose of s 11.
The Attorney- General, supported by the Council, argues that public health
measures such as fluoridation
do not constitute medical treatment
notwithstanding its therapeutic purpose. Ms Hansen, for the plaintiff, is
adamant that a procedure
that involves both a medical purpose and a medical
method qualifies as medical treatment.
International case law
[59] Overseas authorities are of limited assistance. There have been numerous challenges to fluoridation in foreign jurisdictions but none which directly engage the question of whether fluoridation is medical treatment. The United Kingdom cases are directed to the legality of the decision to fluoridate.40 The courts were not required to consider whether fluoridation infringed the plaintiff’s rights. McColl v Strathclyde may be noted, however, for distinguishing Attorney-General v Lower
Hutt City Corporation in deciding that fluoridation was outside the
powers of the respondent council.
[60] Although fluoridation is widespread in Australia, there has
been no significant constitutional challenge to the
practise. As suggested by
Mr Powell, this may reflect the fact that in six of the seven states, authority
to fluoridate is confirmed
in legislation which also includes provision for
either a State Minister or Secretary to direct that fluoridation
occur.41
[61] It is helpful, however, to examine in more detail decisions of the Irish, Swiss, Canadian and American courts which adjudicated on challenges to decisions to fluoridate as involving a breach of individual rights, of which the right to bodily
integrity was in each case an element.
40 McColl v Strathclyde ([1983] SC 225; Milner v South Central SHA [2011] EWHC 218 (Admin).
Ireland
[62] One of the earliest challenges to fluoridation was Ryan v
Attorney-General.42
Legislation authorising the introduction of fluoride into the water supply
was challenged as contrary to the Irish Constitution which
included a general
state guarantee of personal rights. These were held to include the right to
bodily integrity. In the High Court
the claim was dismissed on the ground that
there was no interference with the right as there was no obligation to consume
the fluoridated
water supply; no right to an unfluoridated supply; and because
the fluoride could be easily filtered out by an end-user.
[63] On appeal the Supreme Court declined to resolve the case on that narrow basis, particularly without sufficient evidence as to the practicality of removing the fluoride. The Court held that, as fluoridation had no effect on the “wholeness or the soundness” of the body of a consumer, the ingestion of fluoridated water could not constitute an infringement of or a failure to respect the bodily integrity of the
individual.43 The Court also rejected the contention that
fluoridation involved mass
medication or mass administration of “drugs” through water. The Court said that fluoridation is a process by which an element which naturally occurs in water is raised to a concentration at which it is found in wholesome water with an outcome that did not differ from what occurred in nature. The Court quoted from the conclusion of the New Zealand Commission of Inquiry 195744 that fluoride is not a
drug but a nutrient and fluoridation is a process of food
fortification.45
Switzerland
[64] In Jehl-Doberer v Switzerland46 the
complainant contended that a fluoridation scheme was contrary to Article 8
of the European Convention on Human Rights
and Fundamental freedoms which
provides:
Article 8: right to respect for private and family
life
42 Ryan v Attorney-General [1965] IESC 1; [1965] IR 294 (HC and SC) at 308.
43 At 349.
45 Ryan v Attorney-General, above n 42, at 349.
46 Jehl-Doberer v Switzerland (1993) E Comm HR No. 17667/91.
[65] The Commission noted that its case-law was that even minor
medical treatment, as long as it is compulsory, constitutes
an interference with
a person’s right to respect for private life. However, the Commission
held that:47
... this situation differs from that of compulsory medical treatment. Thus
in the Canton of Basel-Stadt drinking water is provided
as a general service to
the population.
[66] The Commission went on to say that it was unnecessary to examine the
issue since any interference with the applicant’s
right would, in any
event, be justified within the meaning of Art 8(2).
Canada
[67] In Locke v Calgary48 the plaintiff
challenged a bylaw allowing for fluoridation of the water supply as a breach
of the right to security enshrined
in s 7 of the Canadian Charter of Rights and
Freedoms which reads as follows:
[68] Montgomery J found as a fact that fluoridation is the most cost-effective available public health measure for reducing tooth decay and the introduction of fluoride to the water supply of the city of Calgary presented no risks to the lives or health of the populace. He found that Mr Locke had not established that his security
or any person’s security was affected by communal water fluoridation.49 He went on
to say that the intrusion by the judiciary into value judgments of the
legislature and the electors must be restrained unless
there is a clear
breach of the Charter
47 At 6.
48 Locke v Calgary (1993) 147 AR 367 (AQB).
established on at least the balance of probabilities.50 Based
on the evidence before him and the findings of fact made, he found that no
violation of the plaintiff’s right to security
of the person had been made
out.
[69] In Millership v British Columbia one of the grounds of challenge to provincial legislation that permitted the fluoridation of public water was a breach of s 7 of the Charter. 51 The “liberty” interest includes the right to make fundamental
personal choices free from state interference52 and the right not
to be subject to
medical treatment without informed consent is an aspect of the liberty interest.53 The Court rejected a submission that the addition of fluoride should not be considered medical treatment as fluoride is better considered as a nutrient rather than a drug or medicine. Powers J held that it is more appropriate to deal with the issue on the basis that fluoride is being used as a drug or medicine, at least for the purposes of promoting health when it is added to the public water system.54 However, the Court went on to find that the plaintiff’s s 7 rights had not been infringed because fluoridation within the range of the optimal levels recommended by the relevant health authority is a minimum intrusion into the plaintiff rights to liberty or security of the person and did not amount to a prima facie breach of those rights.55 The Court also found that even if the plaintiff’s right under s 7 was infringed, the infringement occurred in accordance with the principles of fundamental justice,56 was minimally
impairing of the right57 and was proportional to the importance of
the right and goals
of fluoridation.58
United States of America
[70] Challenges to fluoridation decisions in the United States have relied
on inconsistency with the 14th Amendment to the United
States Constitution or
50 At [51].
51 Millership v British Columbia [2003] BCSC 82 (BCSC) affirmed by Millership v British
Columbia 2004 23 BCLR (4th) 198 (BCCA).
52 Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44 at [49].
53 Fleming v Reid (Litigation Guardian) (1991), 82 D.L.R. (4th) 298.
54 Millership v British Columbia, above n 51, at [105],.
55 At [112].
56 At [117].
57 At [129].
equivalent provisions in state constitutions. The 14th
Amendment relevantly provides:
Section 1 ... No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State
deprive any person of life, liberty, or property, without due process or law;
nor deny to any person within its
jurisdiction the equal protection of the
laws.
An infringement of that right through compulsory medical treatment was
acknowledged by the Supreme Court in Jacobson v Commonwealth of
Massachusetts.59
[71] In Dowel v City of Tulsa the plaintiffs challenged the
validity of an ordinance authorising fluoridation of Tulsa’s water supply
as, among other things,
involving a violation of the 14th Amendment
of the US Constitution. 60 The Court rejected the argument that
fluoridation should be distinguished from the addition of chlorides, both of
which achieved demonstrable
public health benefits, the one by killing germs in
the water, the other by reducing the incidence of tooth decay. The Court said
at:61
To us it seems ridiculous and of no consequence in considering the public
health phase of the case that the substance to be added
to the water may be
classed as a mineral rather than a drug, antiseptic or germ killer; just as it
is of little, if any, consequence
whether fluoridation accomplishes its
beneficial result to the public health by killing germs in the water, or by
hardening the teeth
or building up immunity in them to the bacteria that causes
caries or tooth decay. If the latter, there can be no distinction on
principle
between it and compulsory vaccination or inoculation, which, for many years, has
been well-established as a valid exercise
of police power.
[72] The Court also rejected the argument that fluoridation could not be justified as a public health measure because it was only of direct benefit to those under the age of 16 year. The Court endorsed the principle that the protection of liberty requires the absence of arbitrary restraint but not immunity from reasonable
regulations imposed in the interests of the
community.62 In Kraus v City
of
59 Jacobson v Commonwealth of Massachusetts, [1905] USSC 38; 197 U.S. 11 (1905).
60 Dowel v City of Tulsa 273 P.2d 859. (Okl, 1954).
61 At 863.
62 At 863.
Cleveland the City of Ohio Supreme Court reached similar conclusions
on the same questions raised in Dowel v City of Tulsa.
63
[73] In Minnesota State Board of Health v City of Brainerd the Supreme Court of Minnesota held that upon balancing the substantial public health benefit of fluoridation against its innocuous effect on the individual, fluoridation is a justified intrusion into an individuals’ bodily integrity.64 In considering whether the means of achieving the state’s purpose is proper and reasonable, the Court concluded that the means adopted are not particularly offensive or unusual. The Court said that
although the actual consumption of water is, in a sense, a private and
personal act, the preparation and treatment of water is a common
and accepted
public function. The Court said: 65
While forced fluoridation does, to a limited extent, infringe upon an
individual’s freedom to decide whether he will or will
not ingest
fluoride, such an infringement, absent any significant adverse consequences to
the individual, cannot be accorded substantial
weight.
[74] The Court quoted with approval the following passage from the
decision of the Illinois Supreme Court in Schuringa v City of
Chicago:66
[F]luoridation programs, even if considered to be medication in the true
sense of the word, are so necessarily and reasonably related
to the common good
that the rights of the individual must give way.
[75] In Quiles v City of Boynton Beach67 the applicant
contended that the city’s fluoridation of water amounted to medical
treatment in breach of a right to freedom
from compulsory medication that was a
subset of the right to privacy guaranteed in Art 1, s 23 of the Florida
Constitution which
reads as follows:
Right of privacy – Every natural person has the right to be let alone
and free from governmental intrusion into the person’s
private life
except as otherwise provided herein. This section shall not be construed to
limit the public’s right to access
to public records and meetings as
provided by law.
63 Kraus v City of Cleveland 127 N.E.2d 609 (Ohio, 1955).
64 Minnesota State Board of Health v City of Brainerd 241 N.W.2d 624 (Minn, 1976) at [12].
65 At [11].
66 Schuringa v City of Chicago 198 N.E.2d 326 (Ill, 1964).
67 Quiles v City of Boynton Beach (2001) 802 So 2d 397 (Fla. App 4 Dist 2001).
[76] The Florida District Court of Appeal (4th Circuit) held
that the introduction of fluoride is not a medical procedure. The Court
rejected the contention that fluoridation
amounted to “compulsory
medication”, pointing out that the city’s fluoridation of its water
stops at the water
faucet:68
The city is not compelling [the plaintiff] to drink it. He is free to filter
it, boil it, distil it, mix it with purifying spirits,
or purchase bottled
drinking water. His freedom to choose not to ingest fluoride remains
intact.
[77] The Court concluded by adopting the following statement in
Alternhoff:69
[T]here is, in logic, a valid factual distinction between preserving
health on one hand and improving it on the other .... We do feel,
however, that it is a distinction which the courts should not be made to suffer
in arriving at a
determination as to whether a particular public health measure
is or is not a reasonable or legitimate exercise of power to legislate
to the
public interest on the state or local level.
[78] The divergent grounds on which the courts have held that
fluoridation did not breach the right to bodily integrity, privacy
or liberty,
have found their way into the arguments advanced in this case. As earlier
mentioned, it was contended for the Council,
as was accepted in Ryan,
that fluoridation does not have a medical purpose. Analogies were drawn with the
use of chlorine, as in Dowel, which is an accepted public health measure
for treatment of drinking-water. It was argued that any breach was de
minimis and outweighed by the substantial health benefits of fluoridation as
found in Minnesota State Board of Health v City of Brainerd. I pass now
to consider how these and other points made in argument apply to the somewhat
narrower right to refuse medical treatment
found in the NZBORA.
Section 11 and fluoridation - discussion
Medical treatment
[79] I do not think it is helpful to attempt to adjudicate on the range of views expressed as to precisely how the process of fluoridation should be characterised. As indicated earlier, I consider it preferable to confront squarely that, although the
addition of fluoride does no more than to elevate it to levels which
often occur
68 At 399.
69 City Comm’n of Fort Pierce v State ex rel Altenhoff 143 So.2d 879 (Fla 2d DCA 1962) at 888
naturally, it is nevertheless a process undertaken for the purpose of
preventing or arresting a disease. The descriptor should not
be a decisive
consideration. It is sufficient that the process of fluoridation is undertaken
for a therapeutic purpose.
[80] In my view, fluoridation cannot be relevantly distinguished from the
addition of chlorine or any other substance for the
purpose of disinfecting
drinking water, a process which itself may lead to the addition of contaminants
as the water standards themselves
assume.70 Both processes involve
adding a chemical compound to the water. Both are undertaken for the prevention
of disease. It is not material
that one works by adding something to the water
while the other achieves its purpose by taking unwanted organisms
out.71
[81] The addition of iodine to salt, folic acid to bread and the
pasteurisation of milk are, in my view, equivalent interventions
made to achieve
public health benefits by means which could not be achieved nearly as
effectively by medicating the populace individually.
The fact that iodine is an
essential nutrient, necessary for the function of the thyroid gland as Professor
David Menkes72 pointed out, does not alter the fact that it is added
to salt in order to prevent thyroid disease. All such measures have a
therapeutic
purpose. All are intended to improve the health of the populace.
But they do not, in my view, constitute medical treatment for the
purpose of s
11.
[82] The terms of s 11 themselves indicate that medical treatment is of
more limited scope. One would not naturally describe
a person drinking
fluoridated water or ingesting iodised salt as “undergoing”
treatment. That is a description that
more readily lends itself to
something that is “done” to a patient, a point made by
Professor John McMillan.73
[83] The terminology of s 11 contrasts with the wording of s 10. First, s 10, like s 9, creates a right “not to be subjected to” the proscribed activity. The right “not to be subjected to medical and scientific experimentation without ... consent” plainly
extends to all and any circumstances in which a person may be,
knowingly or
70 See, for example, ss 4.3.2, 4.3.3 and 4.3.4 of Drinking-Water Standards.
71 This is consistent with the decision in Dowel v City of Tulsa, above n 60.
72 Associate Professor at the Waikato Clinical School of the University of Auckland and Consultant
Psychiatrist.
73 Professor of Bioethics at Otago University.
unknowingly, the subject of scientific or medical experiment. Both s 9 and s
10 must be understood as encompassing any form of activity
which results in the
specified outcome. In contrast, an experience that is undergone
suggests something of narrower compass.
Clearly one undergoes surgery, a
medical procedure or a psychiatric examination. But it seems to me to be inapt
to speak of “undergoing”
the process of drinking fluoridated water.
On the other hand, it is entirely appropriate to undergo a course of treatment
which
could include taking fluoride.
[84] The language of s 11 in the context in which it appears strongly
suggests that the right to refuse medical treatment is only
engaged when the
treatment takes place in the context of a therapeutic relationship in which
medical services are provided to an
individual. That is the only context in
which the right has been invoked in New Zealand and, as an element of the
broader rights
relied on in the overseas authorities to which I was referred.
That is not, of course, decisive. It does, however, serve to underline
that to
extend the right to refuse medical treatment to public health measures intended
to benefit all or a section of the populace
is a significant step.
[85] The language of NZBORA does not support such an extension and
internationally recognised human rights norms do not require
it.74
The reasons why this should be so were helpfully identified and
articulated by Mr Powell.
[86] The right to refuse medical treatment is to be confined to direct interference with the body or state of mind of an individual – what Mr Powell called “the intimate sphere of human identity” – because within that sphere there are no competing interests that need to be moderated or resolved. Provided it does not have consequences for public health75 a person has the right to make even the poorest decisions in respect of their own health. But where the state, either directly or through local government, employs public health interventions, the right is not engaged. Were it otherwise, the individual’s right to refuse would become the
individual’s right to decide outcomes for others.76
It would give any person a right
74 Nowak, above n 24. at 387.
75 As may arise, for example, with infectious diseases.
of veto over public health measures which it is not
only the right but often the responsibility of local authorities to
deliver.
[87] Were medical treatment for the purpose of s 11 to extend to public
health initiatives, an individual right to refuse could
cut across the
obligation of the state to promote the health of its citizens. That is itself
a right. Mr Powell drew my attention
to Art 12 of the International Covenant
on Economic, Cultural and Social Rights, to which New Zealand is a signatory.
Article 12
provides:
(a) The provision for the reduction of the stillbirth-rate and of
infant mortality and for the healthy development of
the child;
(b) the improvement of all aspects of environmental and
industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
(d) The creation of conditions which would assure to all medical
service and medical attention in the event of sickness.
[88] New Zealand gives effect to Art 12 through the Public Health and
Disability Act 2000, s 3. Public health measures may be
required in order for
the State to give effect to its responsibilities. It will not be constrained
from doing so by s 11 provided
the measures taken do not lead to medical
treatment which involves direct interference with the right to bodily integrity
and autonomy
to which s 11 gives effect.
[89] Section 11 ensures that within the context of a therapeutic relationship there is a right to refuse medical treatment. To the extent that public health measures may lead to therapeutic outcomes and constitute medical treatment in the broad sense, an individual has no right to refuse, at least not so as to produce outcomes that will deny others the benefit of such measures. In the case of fluoridation that does not
necessarily lead to unwanted outcomes. As I will shortly discuss in more
detail, and as has been acknowledged in the overseas jurisprudence,
a resolute
consumer who does not want to ingest additional fluoride can employ a range of
measures to avoid doing so.
[90] Ms Hansen drew my attention to the discussion on s 11 and
fluoride treatment in Butler and Butler and to the authors
view that
fluoridation falls under medical treatment for the purpose of s 11.77
They explain their conclusion on the basis that fluoridation of water
supply is intended to cure dental problems in the community.
They assume that
all that is required to bring fluoridation within s 11 is a medical purpose.
For the reasons I have given, I am
satisfied that something more is required
before a therapeutic intervention qualifies as medical treatment for the purpose
of s 11.
Refusal
[91] Because of the view I have taken that fluoridation does not come within the purview of medical treatment, it is unnecessary for me to reach a concluded view on the alternative submission made on behalf of the Attorney-General that the right in s
11 would not be engaged because an individual has the ability not to consume
fluoridated water. It is submitted that the right to
refuse to undergo
treatment is not lost because no one is compelled to consume the water that is
supplied to their home. A citizen
has the choice of supplying their own drinking
water or filtering out the fluoride. Mr Powell argued that a person who does
not
wish to receive fluoride in their tap water is really complaining about the
failure of the local authority to supply water that is
not fluoridated rather
than being deprived of the right to refuse to ingest fluoride.
[92] That was the view taken by the Florida Supreme Court in Quiles and in Millership it was held that any intrusion on the plaintiff’s bodily integrity as a result of fluoridation had such a trivial impact that it did not amount to a prima facie
breach of the plaintiff ’s right.
77 Butler and Butler, above n 38, at 11.8.10.
[93] Ms Hansen responded that while it is theoretically possible
to avoid consuming fluoridated water delivered to the
home, the measures
necessary to do so give rise to expense and inconvenience and would not be
available to those without the resources
to take the necessary steps. She
relied on evidence to indicate that it is practically impossible to avoid the
consumption of fluoridated
water as a result, for example, of the consumption of
food or beverages made with fluoridated water or its consumption at cafes and
restaurants or at friends’ homes.
[94] On the basis that the rights in NZBORA need to be applied
with commonsense and to be given practical effect,78 I tend to the
view that if the supply of fluoridated water were to be regarded as medical
treatment, a consumer would not have the
practical ability to refuse treatment.
I accept, however, as did the Court in Millership, that the intrusion
into an individual’s rights would be minimal. Relying on Police v
Smith and Herewini79 and Ministry of Health v
Atkinson80 Mr Powell submitted that in such circumstances the s
11 right would not be engaged.
[95] On my reading of the authorities relied on, the enquiry into
materiality is for the purpose of determining whether the right
is engaged in
the first place rather than whether the infringement is trivial or technical in
nature. That is an issue that is
more appropriately addressed in considering
the consequences of infringement and the enquiry which would take place under s
5 as
to whether any reasonable limits prescribed by law can be demonstrably
justified.
Section 5 – justified limitation
[96] In case I am wrong in my conclusion that s 11 of NZBORA does not
engage the power to fluoridate, I will briefly consider
whether s 5 would apply.
Section 5 provides:
5 Justified limitations
Subject to section 4 of this Bill of Rights, the rights and freedoms
contained in this Bill of Rights may be subject only
to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
78 Minister of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA) at 271 per Cooke P.
79 Police v Smith and Herewini [1994] 2 NZLR 306 (CA).
80 Ministry of Health v Atkinson [2012] NZCA 184; [2012] 3 NZLR 456 (CA).
[97] Two questions arise:
(a) Whether the power to fluoridate is prescribed by law;
and
(b) Whether what is prescribed by law is demonstrably justified in a free and
democratic society.
Prescribed by law
[98] In R v Hansen McGrath J said:81
To be prescribed by law, limits must be identifiable and expressed with
sufficient precision in an Act of Parliament, subordinate
legislation or the
common law. The limits must be neither ad hoc nor arbitrary and their nature
and consequences must be clear,
although the consequences need not be
foreseeable with absolute certainty.
The reference to subordinate legislation indicates that orders in council
bylaws and tertiary legislation may be considered.82
[99] Ms Hansen argued that what is prescribed by law must be expressly stated, relying on what was said in Gravatt v Coroners Court at Auckland.83 The comment in Gravatt was not made as part of a consideration of the application of s 5. It is the case that the courts should be slow to impute to Parliament an intention to override established rights and principles.84 But that intention may arise by necessary
implication, as was recognised in Slaight Communications Inc
v Davidson.85
Lamer J identified two situations when the equivalent provision to s
5 of the NZBORA may apply. These were helpfully
summarised in
Attorney-General v IDEA Services as follows: 86
(a) One situation was where the legislation under which the decision
was made confers, either expressly or by implication,
the power to infringe a
right protected by the Canadian Charter. In that situation, it was the
legislation that was subject to the
test of whether it was a
81 R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1 (SC) at [180].
82 See also Butler and Butler, above n 38, at 6.13.2.
83 Gravatt v Coroners Court at Auckland [2013] NZHC 390; [2013] NZAR 345 at [39].
84 Cropp v A Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774 at [26].
85 Slaight Communications Inc v Davidson [1989] 1 SCR 1038.
86 Attorney-General v IDEA Services [2012] NZHC 3229, [2013] 2 NZLR 512 at [183].
reasonable limit that could be justified in a free and democratic
society;
(b) The second situation was where the legislation pursuant to which
the decision was made confers an imprecise discretion,
and does not confer,
either expressly or by implication, the power to limit the rights guaranteed by
the Canadian Charter. In that
situation it is the decision, and not the
legislation, which is subject to the test of whether it is a reasonable limit
that can
be demonstrably justified in a free and democratic society.
[100] Ms Hansen argued that at best the legislation conferred an
imprecise discretion and it was therefore the decision
itself that should be
subjected to scrutiny. However, as the earlier discussion shows, there is clear
statutory authority to fluoridate
deriving from the broad power to supply water
in the LGA 2002 and the express recognition in the Health Act that such water
may contain added fluoride. The question I am required to consider then is
whether the power to fluoridate is demonstrably
justified in a free and
democratic society.
Test
[101] The approach to be taken to a s 5 analysis is well established. As
articulated by Tipping J in R v Hansen.87 The questions
are:
(a) Does the limiting measure serve a purpose sufficiently important to
justify curtailing of the right or freedom?
(b)
(i) Is the limiting measure rationally connected with its purpose? (ii) Does the limiting measure impair the right or freedom no more
than is reasonably necessary for sufficient achievement of its
purpose?
(iii) Is the limit in due proportion to the importance of the objective?
Importance of the purpose
[102] The objective of fluoridating water is to reduce the severity and
incidence of tooth decay. An incidental benefit is to reduce
oral health
inequalities particularly in children. The poor dental health of children in
Waverley and Patea was the subject of detailed
submissions to the Council and
evidence before me.88
[103] In my opinion, the objective of improving the dental health
of New Zealanders, particularly children, is unarguably
sufficiently important
to justify curtailment of the right to refuse (if it is engaged). The end is
unquestionably justified. Any
debate must focus on the means adopted to achieve
it.
Rational connection
[104] Ms Hansen valiantly sought to show that there is no rational
connection between fluoridation and the objective of preventing
dental caries.
She argued that the link between the problem and the perceived solution is weak
as dental caries is not caused by
a lack of fluoride but by excess sugar in the
diet and poor oral hygiene habits.
[105] Whatever the causes of tooth decay, I accept Mr Laing’s
submission that there is a clear rational connection between
fluoridation
and its objective. Fluoridation increases the amout of fluoride available for
consumption which in turn decreases
the incidence and severity of dental decay
across the population who receive fluoridated water.
No more than reasonably necessary
[106] The key question is whether or not fluoridation falls within the range of reasonable alternatives available. The issue was framed by Tipping J in R v Hansen
in the following way:89
The court must be satisfied that the limit
imposed ... is no greater than is reasonably necessary to achieve
Parliament’s objective
... In practical terms this inquiry involves the
court considering whether Parliament might have sufficiently achieved its
objective
by another method involving less cost to the presumption of
innocence.
[107] For the plaintiff it is submitted that fluoridated water is not needed to prevent tooth decay. All that is needed is a healthy diet, good dental hygiene and regular dental checkups. Ms Hansen relied on the evidence of Dr Stamoulis Litras90 that targeted preventive policies would be more effective. These would include banning soft drinks and sugary snacks in schools, fluoridating salt in fast foods and soft drinks at high-risk areas, improved diet and oral hygiene education for low socio-
economic families and improved access to dental care.
[108] For the Council, Mr Laing acknowledged that there are a range of complementary steps which could also help to reduce dental decay, among them those suggested by Dr Litras. Some of those suggested – fluoridation of milk or salt among them – would potentially give rise to the same kind of intrusion into any right to refuse medical treatment as the additional fluoride to water. Further, the evidence of Dr Whyman is that there is less good quality scientific evidence that milk and salt fluoridation are effective. On the present state of knowledge, it cannot be seen as an
equally effective alternative to fluoridation of water.91
Improved dental hygiene and
ready access to a dentist are an established element of public health policy
but have been shown to be of limited efficacy.92
[109] The evidence satisfies me that fluoridation is within the range of reasonable alternatives available to Parliament to address the problem of dental decay,
particularly in low socio-economic
areas.
90 A dentist practising in Wellington.
92 Dr Whyman referred to evidence that only about 45 per cent of children aged 2 – 17 years and
65 per cent of adults aged 18 years and over brush their teeth twice daily with a fluoridated toothpaste.
Whether the limit is proportionate to the objective
[110] The plaintiff questions the benefits of water fluoridation and
criticises the quality of the evidence relied on to support
its efficacy.
Assuming, however, that fluoridation results in a small reduction of decay, it
is submitted that the outcome is completely
disproportionate to the harm done.
The harms identified are the risk of dental fluorosis, a condition which affects
the tooth enamel,
the risk of ingesting excessive quantities of fluoride and of
fluoridation increasing the content of mercury, arsenic and lead in
drinking
water. The disadvantages of fluoridating drinking water are argued to be
disproportionate to the advantages. In response,
it is submitted on behalf of
the Council that fluoridation is proportionate response. It addresses an
important and widespread health
issue by the most effective and efficient means.
While it is acknowledged to bring about an increase in the prevalence of
fluorosis,
the evidence relied on by the Council is that any fluorosis resulting
ranges from very mild to mild which has negligible effect on
the appearance of
teeth. The Council’s witnesses dispute evidence of higher levels of heavy
metals resulting from fluoridation
and dismiss as fanciful the risk that
excessive quantities of fluoride may be consumed.
[111] Accepting, as I must, that there is respectable scientific and medical support for the Council’s position, I am driven to the conclusion that the significant advantages of fluoridation clearly outweigh the only acknowledged drawback, the increased incidence of fluorosis. I am satisfied that the power conferred on local authorities to fluoridate is a proportionate response to the scourge of dental decay,
particularly in socially disadvantaged areas.93
Failing to take into account relevant considerations
[112] The plaintiff claims that in making its decision to add fluoride to the drinking water of Patea and Waverley the Council failed to take into account nine relevant considerations. Six of these relate to the claimed breach of s 11 of NZBORA. As I have found the NZBORA to be inapplicable, it is necessary only to consider the
remaining three considerations. They are:
93 This is consistent with the decisions in Millership v British Columbia, above n 51; Schuringa v
City of Chicago, above n 66.
(a) That the fluoride added to water supplies is sourced from
industrial by-products and contains contaminants that are potentially
harmful to
health.
(b) That there is a body of credible scientific evidence that shows
that adding fluoride to water supplies to achieve a level
of 0.7 to 1 ppm
fluoride is potentially harmful to health.
(c) That there is no credible scientific research to show how drinking
fluoridated water at between 0.7 and 1 ppm fluoride can
reduce tooth
decay.
[113] Neither the 2002 Act nor the Health Act require the Council to consider the three matters listed. If they are required to be considered before a decision to fluoridate can be made, the requirement to do so must arise by implication from the scheme and purpose of the legislation.94 Ms Hansen did not advance any submissions to support the claim that the three factual issues referred to are implied mandatory relevant considerations. Each is a controversial factual assertion which
could not possibly be implied from the general terms of the empowering
legislation
which is the source of the Council’s power.
[114] It is clear, in any event, that the three claims which it is alleged the Council failed to consider were the subject of detailed submissions and of similarly extensive submissions in response. There is no reason to think that the matters raised were not considered. The minutes of the special meeting of the Council at which submitters were able to make oral presentations record that all councillors had read the written submissions in advance of the meeting. The record of the oral submissions shows that the issue of contamination, the concern that the addition of fluoride may be otherwise harmful to health and whether or not fluoridation is effective in reducing tooth decay were fully ventilated. In the press release which accompanied the announcement of the Council’s decision to fluoridate, the arguments for and against were acknowledged and the council’s reliance on the advice of experts to the effect that fluoridation of the water supply is a safe and effective measure for improving public oral health. There is nothing to show that the competing arguments and
evidence were not fully and fairly considered by the
Council.
[115]
This cause of action cannot succeed.
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.
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