Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 


Judgment: New Health NZ Inc v Sth Taranaki District Council

[Full judgment: New_Health_v_Taranaki.pdf]

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


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. [...]

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.

[Full judgment: New_Health_v_Taranaki.pdf]

© Scoop Media

 
 
 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Digital Evolution: Scoop Independent News Launches "Operation Chrysalis"

From today Scoop is beginning a process of public consultation with the political, business and civil society groups it has served for the past 15 and a half years.

"It is hoped that in time - with new leadership and increased community engagement - the chrysalis will incubate a new kind of Scoop, one which can sustainably continue Scoop's Mission 'to be an agent of positive change'", says Scoop Founder, Editor and Publisher Alastair Thompson.

"As big publishing shrivels, public participation in contributing and spreading news has grown. Scoop has evolved with this wave by providing an independent platform, committed to upholding democracy, providing a voice to all, and providing the public easy access to information about decisions which affect them." More>>

 

Parliament Adjourns:

Greens: CAA Airport Door Report Conflicts With Brownlee’s Claims

The heavily redacted report into the incident shows conflicting versions of events as told by Gerry Brownlee and the Christchurch airport security staff. The report disputes Brownlee’s claim that he was allowed through, and states that he instead pushed his way through. More>>

ALSO:

TAIC: Final Report On Grounding Of MV Rena

Factors that directly contributed to the grounding included the crew:
- not following standard good practice for planning and executing the voyage
- not following standard good practice for navigation watchkeeping
- not following standard good practice when taking over control of the ship. More>>

ALSO:

Gordon Campbell:
On The Pakistan Schoolchildren Killings

The slaughter of the children in Pakistan is incomprehensibly awful. On the side, it has thrown a spotlight onto something that’s become a pop cultural meme. Fans of the Homeland TV series will be well aware of the collusion between sections of the Pakistan military/security establishment on one hand and sections of the Taliban of the other… More>>

ALSO:

Werewolf Satire:
The Politician’s Song

am a perfect picture of the modern politic-i-an:
I don’t precisely have a plan so much as an ambition;
‘Say what will sound most pleasant to the public’ is my main dictum:
And when in doubt attack someone who already is a victim More>>

ALSO:

Flight: Review Into Phillip Smith’s Escape Submitted To Government

The review follows an earlier operational review by the Department of Corrections and interim measures put in place by the Department shortly after prisoner Smith’s escape, and will inform the Government Inquiry currently underway. More>>

ALSO:

Intelligence: Inspector-General Accepts Apology For Leak Of Report

The Inspector-General of Intelligence and Security, Cheryl Gwyn, has accepted an unreserved apology from Hon Phil Goff MP for disclosing some of the contents of her recent Report into the Release of Information by the NZSIS in July and August 2011 to media prior to its publication. The Inspector-General will not take the matter any further. More>>

ALSO:

Drink: Alcohol Advertising Report Released

The report of the Ministerial Forum on Alcohol Advertising and Sponsorship has been released today, with Ministers noting that further work will be required on the feasibility and impact of the proposals. More>>

ALSO:

Other Report:

Leaked Cabinet Papers: Treasury Calls For Health Cuts

Leaked Cabinet papers that show that Government has been advised to cut the health budget by around $200 million is ringing alarm bells throughout the nursing and midwifery community. More>>

ALSO:

Get More From Scoop

 

LATEST HEADLINES

 
 
 
 
 
 
 
 
Politics
Search Scoop  
 
 
Powered by Vodafone
NZ independent news