By: Shane Campbell
Published: 20/01/2017
Introduction
 
On the 17 November 2016, the Health (Fluoridation of Drinking Water) Amendment Bill (Bill) was introduced into Parliament; its aim being to amend the Health Act 1956 (Act) to enable District Health Boards (DHBs) to make decisions and give directions about the fluoridation of government drinking water supplies in their areas.
 
The Bill was read for the first time on the 6 December 2016 and is currently being considered by the Health Select Committee, whose report is due in June 2017.  Despite criticism from certain members of the public, on the whole, the Bill is designed to address the oral health problems currently facing New Zealand.
 
The Bill
 
Presently, local authorities fund the supply of drinking water from rates and are responsible for decisions on fluoridation within their geographical area.  The Bill alters this situation by amending Part 2A of the Act, which is concerned with drinking water.
 
Clause 5 of the Bill would insert a new subsection (3) into s 69A of the Act, such that the purpose of Part 2A would include enabling DHBs to direct local government drinking water suppliers to add, or not to add, fluoride to drinking water supplied by that supplier.  The local government drinking water supplier would be required to comply with such a direction.  A local government drinking-water supplier is defined as "a drinking water supplier who is a local government organisation."  The previous fluoridation prohibition in s 69O(3)(c) of the Act would be repealed to permit this change.
 
The body of the Bill is contained in clause 8, which inserts two new provisions into Part 2A of the Act (sections 69ZJA and 69ZJB).  Under the first provision, a DHB would have the power to direct a local government drinking-water supplier to add, or not to add, fluoride to drinking water supplied by that supplier within the DHB's geographical area.  In deciding whether or not to make such a direction, the DHB would be required to consider the scientific evidence on the effectiveness of fluoridating drinking water as well as whether the benefits of fluoridation outweighed the financial costs.
 
Where a local government drinking water supplier, supplies drinking water within more than one geographical area, all affected DHBs would be required to be in agreement in order for any one of them to make a direction.  Any direction must be published on the relevant DHB's website and must specify a time within which it would be reasonably practicable to obtain the compliance of the local government drinking water supplier.
 
The second provision 'gives teeth' to the foregoing provisions by providing that a local government drinking water supplier who does not comply with a direction issued by a DHB does commit an offence under the Act.
 
The remainder of the Bill is concerned with minor technical matters and transitional measures.  In respect of the latter, clause 10 inserts a new Schedule 1AA to the Act, Part 1 of which requires that a local government drinking water supplier who presently fluoridates water must continue to fluoridate water unless directed not to by the relevant DHB.  As with the provisions contained in clause 8, it is an offence under the Act to contravene this Part.
 
Why is the Bill being enacted?
 
The main impetus for the Bill is the high rates of preventable tooth decay which continue to exist in New Zealand.  As the Ministry of Health observed in its Regulatory Impact Statement, poor oral health has significant downstream consequences, as those who suffer from it are more likely to experience dental pain and perform poorly at work or school.  Moreover, the burden of poor oral health remains inequitable; Māori and Pacific adults and children, as well as those living in areas of high deprivation, have significantly higher rates of tooth decay and poorer oral health than the general population.
 
Against this, water fluoridation has been endorsed by numerous international health authorities, including the World Health Organisation, as the most effective public health measure for the prevention of dental decay.  Out of all of the interventionist strategies available to governments, fluoridation offers greater potential gains at a lower cost.  Fluoridation also does not discriminate between individuals or groups of individuals – its benefits are enjoyed by people of all ages and socioeconomic status. 
 
As things stand, it is approximated that only 2.3 million New Zealanders currently have access to fluoridated water.  This is largely attributable to the fact that fluoridation of water is a topic that provokes strong disagreement; judicial proceedings being a concomitant of this.
 
Although the first challenge to the power of a local authority to fluoridate water supplies occurred in 1964, the last few years has seen a notable increase in such proceedings.  As an example, in New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, [2014] 2 NZLR 834 the applicant argued that the Council did not have the power to add fluoride to the area's water supply and that adding fluoride constituted a breach of the right to refuse medical treatment under s11 of the New Zealand Bill of Rights Act 1990.
 
Along different lines, in Safe Water Alternative New Zealand Inc v Hamilton City Council [2014] NZHC 1463 it was argued that the Council's decision to recommence fluoridation was unlawful as the Council had not engaged in consultation and had failed to have regard to all relevant considerations.

In both cases above, the Court rejected the applicant's argument and affirmed the legality of the fluoridation decision.  Nonetheless, these cases underline the fact that there is an apparent willingness by persons to challenge the legality of decisions to fluoridate water supplies. 
 
In light of this, it is perhaps unsurprising that local councils have tended to refrain from making decisions as to whether or not to fluoridate water supplies.  The Bill seeks to resolve this problem by transferring the decision-making power from local councils to DHBs; it being argued that DHBs are better placed to objectively consider the costs and benefits of fluoridation without being influenced by political considerations.
 
Moreover, provided the correct process has been followed, the expertise of DHBs means that there is little risk of fluoridation decisions being the subject of successful judicial review applications (although the Bill does not prevent such proceedings being brought).  Finally, by transferring decision-making power to DHBs and installing a requirement to consider scientific evidence, the Bill provides confirmation of the fact that water fluoridation is a health-related issue.

Conclusion
 
The Bill reflects a political will to alter the current fluoridation of water landscape.  This is based on objective scientific evidence, with the intent of improving the oral health of all New Zealanders. 
 
Whether you agree or disagree with the decision, submissions on the Bill are open until 2 February 2017 and can be made on the website of New Zealand Parliament: http://ow.ly/GIEE3088nhr
 
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