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What the New Zealand Supreme Court ruled on fluoridation

POSTED: 10 July 2018

In June 2018 the Supreme Court  ruled on appeals by New Health New Zealand. This resulted in two judgments.

In the first judgment (NSC59) Justices Elias, Glazebrook, O’Regan and Ellen France, held that fluoridation was a medical treatment, and that if a person lives or works in a fluoridated area it is compulsory medical treatment and therefore it engages Section 11 of the Bill of Rights Act 1990. Only Judge William Young dissented.

Section 11 : “Everyone has the right to refuse to undergo any medical treatment”

The majority decision stands. So it can no longer be argued that fluoridation is “just topping up natural levels of a nutrient”. It is not a nutrient – it is medical treatment.

So why does this not make fluoridation illegal?

The next step was to determine whether fluoridation was authorised by law, and if so, was it a justified limitation on the section 11 right.

Section 5: “Subject to section 4, 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.”

Section 4 allows ordinary statutes to override the Bill of Rights Act.

Chief Justice Sian Elias’ judgment was “the Council had no implied statutory authority to add fluoride to the water it supplied”, but the other four judges ruled they did.

Justices Glazebrook, O’Regan and Ellen France held that they did, under sections 130 and 12 of the Local Government Act 2002, and section 23 of the Health Act 1956. This then requires addressing section 5 of the Bill of Rights Act:

Only Justices Glazebrook, O’Regan and Ellen France addressed section 5, as it was unnecessary under the other two judges’ findings, for opposite reasons.

Justice Glazebrook held that this was a balancing that each decision maker had to make at the time, potentially taking local circumstances into account. But all three agreed the balancing question needed to be addressed.

Justices O’Regan and Ellen France held that fluoridation was justified under Section 5. Only evidence presented to the High Court was allowed to be considered by the Supreme Court. They say they are not able in this forum to weigh the science around benefits and risks, so they rely on the World Health Organisation’s position and the Ministry of Health. They also referred to the New Zealand Fluoridation Report by Professors Gluckman and Skegg (2014) and the Cochrane Collaboration Report (2015). They “acknowledge that the conclusions [of the Gluckman-Skegg Report] are challenged and stand in contrast to the conclusions of the Cochrane Review”.

In spite of their stated inability to address the science, let alone current science, they held that fluoridation is a justified limitation of the right to refuse medical treatment on the basis of (unproved) effectiveness and (unproved) safety claims. This is despite the court reiterating that it is now accepted that benefit for fluoride is from topical application, not from ingestion.

However, this was not a majority ruling and, in any case, was a finding on questions of scientific fact. As such it is not binding on any court or decision maker. That is, any court or decision maker could make the opposite finding at any time.

Since the High Court case in 2015, two important studies have been published: Peckham et al and the Bashash IQ study.

Importantly, the Court held that this question of whether fluoridation is justifiable is to be determined on the balance of probabilities. There is no requirement for absolute proof of harm.

The second ruling (NSC60) held that whether or not fluoridation chemicals should come under the Medicines Act was moot, as an exemption has been given under the Act. This means that fluoridation chemicals added to the drinking water are not medicines for the purpose of the Medicines Act. (This has no effect on the Bill of Rights question above). Fluoride sold in a pharmacy (normally as tablets or drops) is still subject to the same regulations as they always have been, but if added to the public water supply, the normal rules (regarding purity for example) do not apply.

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