The New Zealand Supreme Court has ruled, by majority vote, that “Water fluoridation is compulsory mass medication, in breach of human rights”. It confirmed that fluoridation is a medical treatment as claimed by opponents for over 60 years. It is not a supplement “just topping up natural levels”, as previously claimed by New Zealand’s Ministry of Health and by some health authorities and health professionals in Australia
The impracticality of avoiding fluoridated water makes it compulsory in practice, the majority also ruled.
Three judges held that there was conflicting scientific evidence, confirming that the science is NOT settled.
Chief Justice Sian Elias then held that fluoridation was not prescribed by law, applying section 6 of the Bill of Rights Act, and was therefore unlawful as it breached section 11. That was the correct decision in Fluoride Free NZ’s view.
The rest of the majority held that it was prescribed by law, and it was then necessary to apply a balancing test to determine if the breach of the right – not to be subject to medical treatment without consent – was justified in the case of fluoridation.
Justice Glazebrook held that it was for a local authority to do this when making its decision, potentially taking into account specific local circumstances.
On the balance of information before the Court – the misinformation promulgated by promoters that water fluoridation measurably reduces tooth decay and presents no real health risk – two judges held that it was justifiable. This is despite the court reiterating that it is now accepted that benefit for fluoride is from topical application, not from ingestion.
The Court did not consider information published since the original High Court case, and the recent US Government multi-million-dollar study by Bashash et al, published in Environmental Health Perspectives, carried out by top scientists and researchers in top North American universities – had not yet been published. This study found that children exposed to fluoride at the same levels as New Zealanders had significantly reduced IQ, which could easily have shifted the Justices’ perception of safety.
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, as long-maintained by the Ministry of Health. As a question of fact, the two judges’ conclusion is not binding on any lower court or any statutory decision maker. With the overwhelming weight of scientific evidence that water fluoridation is ineffective and poses significant health risks, this opens the door to end the practice at any time.
The majority held that tooth decay was a condition in the community that a local council could address (through fluoridation) under section 23 of the Health Act. It necessarily follows that any aspect of health in the community, good or bad, must also fall under section 23. This includes the current IQ level of inhabitants. Therefore a local council is required to protect that condition under section 23. So if, on the balance of probabilities, water fluoridation reduces IQ significantly – and half a standard deviation (5 points on the scale used in recent studies) is significant – a council must not implement fluoridation, and in fact must cease it if it is currently in place. Arguably, this mandatory requirement would override any direction that a District Health Board might give a council under the proposed legislation currently before Parliament.
Now that the Supreme Court has ruled fluoridation is medical treatment without consent, and with the mounting evidence that it is ineffective and carries significant health risks, it is time for politicians and the health sector to rethink the practice. Its days are clearly numbered following this judgment.
New Health New Zealand Incorporated v South Taranaki District Council NXSC(59)
(99) “…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.”