Some of our readers were puzzled yesterday by FAN NZ broadcasting the Supreme Court verdict on fluoridation as a victory rather than a defeat. After all the Supreme court ruled against the plaintiffs (New Health New Zealand) in their efforts to prevent South Taranaki from fluoridating its water.
Let me explain, in my view, this is a classic case of losing a battle but winning the war.
In this case, the war is over the ethics of fluoridation. For opponents of fluoridation, this practice violates the individual’s right to medical or human treatment. For proponents the counter-argument has been that fluoride is not a medicine and fluoridation is not a medical treatment. Proponents further argue that even if fluoride was a medicine people are not forced to drink the fluoridated water.
In the following two paragraphs (99 and 100) in the Supreme court ruling it is clear that the judges side with opponents on this matter and this finding will have huge ramifications worldwide. In other words it is a huge victory for us. Meanwhile, proponents will celebrate their local victory.
Applying this approach, we find that fluoridation of drinking water is the provision of medical treatment. It involves the provision of a pharmacologically active substance for the purpose of treating those who ingest it for dental decay. We agree with the Courts below that people who live or work in areas where fluoridation occurs have no practical option but to ingest the fluoride added to the water. So
the treatment is compulsory. While drinking water from a tap is not an activity that would normally be classified as undergoing medical treatment, we do not consider that ingesting fluoride added to water can be said to be qualitatively different from ingesting a fluoride tablet provided by a health practitioner.
We conclude that fluoridation of drinking water requires those drinking the water to undergo medical treatment in circumstances where they are unable to refuse to do so. Subject to s5, therefore, s11 of the Bill of Rights Act is engaged.
To see how that local victory was won you will have to read the paragraphs 101 – 144 in the ruling. But basically, they argue that the individual right to informed consent to medication (section 11 of the NZ Bill or Rights) may in certain circumstances be over-ridden by the interests of the larger community (see section 5). However, the judges somewhat undermined these arguments by earlier acknowledging in paragraph 10 that the benefits of fluoridation are largely topical, and as such allowing individuals the right to informed consent in this case would not deprive the rest of society of fluoride’s perceived benefits since there is universal access to fluoridated toothpaste.
Another important point is that when the issue was being heard the US-government funded study by Bashash et al., 2017 had not been published. Had the judges known about this important and rigorous study, it is questionable whether they would they have felt it was in the interests of the larger community to support a practice which would lower the IQ of its children?
Meanwhile, below are more details and arguments from FAN –NZ.
Paul Connett, PhD
Fluoride Action Network
Most of you will have heard that the Supreme Court made a Ruling on the Appeal by New Health New Zealand. This Appeal resulted in two judgments. The second one (NSC60) held that whether or not fluoridation chemicals should come under the regulations of the Medicines Act was moot, as Medsafe had been given an exemption for fluoridation chemicals if they are added to the drinking water.
The first one (NSC59) dealt with whether or not councils had a legal right to add fluoridation chemicals to the drinking water. Chief Justice Sian Elias said they didn’t, but the other four judges thought they did. However, the important point for us is that all judges, except Judge William Young, ruled that fluoridation was a medical treatment, and that if a person lives or works in a fluoridated area it is compulsory medication and therefore it breached Section 11 of the Bill of Rights Act. Section 11 – “Everyone has the right to refuse to undergo medical treatment”.
So why does this not make fluoridation illegal? The judges then went on to look at Section 5 which is about “Justified limitations” and says “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 is about “Other Enactments” which says that other laws override the Bill of Rights. But two of the judges argued that fluoridation was justified under Section 5. They say they are not able to weigh up the benefits and risks, so they rely on the Ministry of Health and the World Health Organization, who say there are benefits and no risks. One judge ruled 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.
So we are back to everyone, including the highest court of the land, allowing fluoridation because the Ministry of Health and the World Health Organization say it’s okay. This is in spite of the fact that most of the world does not practice fluoridation – even though the WHO says it is good – and the decision makers in the Ministry of Health are a handful of people who have been promoting fluoridation most of their professional careers, so are unlikely to change their mind.
Where does that leave us? The fact that the Supreme Court has ruled that fluoridation is compulsory medical treatment means the proponents can never again spin the PR line that they are “just topping up the natural levels”. Hallelujah! Thank you New Health New Zealand for initiating this great leap forward. It also leaves us where we were before, in that we need hundreds of thousands of New Zealanders to understand this issue – so the few policy advisors within the Ministry of Health can no longer wield such great power so irresponsibly.