Leigh Day & Co has commenced a judicial review challenge on behalf of Ms Geraldine Milner, a life long resident of Southampton, against the South Central Strategic Health Authority (SCSHA) in relation to its recent decision to instruct Southern Water to fluoridate the local water supply in Southampton and parts of South West Hampshire.

Ms Milner is opposed to the proposals to fluoridate the water supply on account of the continuing uncertainties with regard to the long term health risks associated with fluoridation, as well as concerns with regard to the possible adverse environmental effects. She also considers that more targeted and less intrusive measures should be used to deal with problems of tooth decay in the Southampton area.

Failure to have regard to Government policy

The legal challenge argues that the SCSHA failed to have regard to the Government’s policy that mass fluoridation of drinking water should only go ahead in any particular area if a majority of the local people are in favour of it.

During the passage of the relevant parts of the Water Bill (which became the Water Act) during 2003, Lord Warner, the Junior Health Minister, stated in Parliament that it was Government policy that:

“no new fluoridation scheme would go ahead without the support of the majority of the local populations determined by local consultations conducted by strategic health authorities …”

During consideration in Parliament of the Regulations made under the Act in 2005, Lord Warner repeated that:

“it is fundamental to our policy that a strategic health authority should only arrange for its drinking water to be fluoridated where the local population is in favour … Let me dispel any suggestion, however, that we have diluted out commitment that fluoridation schemes would only be introduced where the local population were in favour.”

On 26th February 2009, the very day that the SCSHA took the decision to proceed with fluoridation, the Department of Health’s Customer Service Centre confirmed that:

“It is the Government’s policy that no new fluoridation schemes should be introduced unless it can be shown that the local population is in favour … Moreover, the Department considers that fluoridation is compatible with the European Convention on Human Rights because new schemes could not be introduced unless consultations showed that [it] has local support.”

The SCSHA conducted a consultation of the population affected by the proposal between September and December 2008. Overall, 72% of those responding (including Ms Milner) were opposed to fluoridation with only 28% supporting the proposal. In a separate telephone survey commissioned by the SCSHA, 32% of people supported adding fluoride to water, 38% were opposed and 29% were unsure or did not have a view.

Despite the results of the consultation confirming the local population to be clearly against the proposal, the SCSHA decide to proceed with the proposals.

Failure to properly consider arguments against fluoridation

The legal challenge also argues that the SCSHA failed to follow the requirements set out in the Regulations to evaluate “the cogency of the arguments advanced” in the responses to the consultation for and against fluoridation.

A number of bodies submitted detailed responses setting out a range of arguments against fluoridation. These included Hampshire County Council, who submitted a 56 page response, and Hampshire Against Fluoridation who submitted a detailed 39 page response. These responses raised detailed arguments, supported by references, questioning the effectiveness of fluoridation, concerns about the long term health risks associated with fluoridation and the failure to adequately investigate alternatives.

The actual responses appear not to have been reviewed by the SCSHA Board before reaching their decision to proceed with fluoridation. Instead, the Board simply considered a report prepared by The Evidence Centre, an independent body commissioned by the SCSHA to summarise the responses (and which, for example, appears to have considered Hampshire Against Fluoridation’s response in two short paragraphs). The report explicitly stated that “the compilation does not judge or weight the responses”. Much of the information provided by bodies such as Hampshire County Council and Hampshire Against Fluoridation was never properly considered by the SCSHA Board.

For more information please contact Sean Humber or Benjamin Burrows on 020 7650 1200.

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