There’s something in the water….

Catherine Deans and Peter Le Cren

…and the Government wants more. Fluoride, that is.

Earlier this year a Government commissioned report found strongly in favour of increased water fluoridation. The report concluded that fluoridation is a safe, effective and (relatively) cheap tool for maintaining and improving dental hygiene across all ethnicities, socio-economic groups and ages.

Yet, fluoridation is a politically fraught issue. Our low fluoridation coverage (roughly 54% of the population have access to fluoridated drinking water) is, in part, a result of activity by the loud and influential opponents of fluoridation.

The Government’s proposed solution to the low fluoridation coverage is to shift the debate out of the hands of local authorities (whom the Government believes are “unlikely to increase water fluoridation coverage”) and into the laps of DHBs (who are more likely to make the “scientific evidence for fluoridation…a more prominent factor in decision-making”).

This means that DHBs may soon have the responsibility of deciding whether to fluoridate district water supplies.

Choppy waters ahead?

The issue of water fluoridation has attracted legal scrutiny over the years. Very recently, the Court of Appeal considered, among other things, whether water fluoridation is a breach of the New Zealand Bill of Rights Act 1990. The Court found that the fluoridation of drinking water does not engage the right to refuse medical treatment; and, even if it did, any interference is a justified and reasonable limitation of that right.

But it’s not all smooth sailing ahead for pro-fluoridation advocates. While water fluoridation is on its face lawful, the decision to fluoridate – and, in particular, the process taken to make that decision – may continue to attract legal challenge in the future.

Understandably, DHBs may be nervous about this. If the mantle is handed over, there will be scrutiny of every step DHBs take on the issue. One wrong move could see DHBs drowning in time-consuming and expensive judicial reviews. However, DHBs can chart a safe course through the potentially choppy waters ahead by adopting a good decision-making process.

What is ‘good decision-making’?

‘Good decision-making’ is less about the decision itself and more about how the decision is made. Like with most things, the devil will be in the detail. Nonetheless, if the time comes, DHBs will need to keep in mind three essential principles:

  • Act according to the law – DHBs will need to correctly apply the law; exercise powers within the boundaries of their statutory authority; and act in good faith. An outline of the Government’s anticipated legislative changes can be viewed here. Obviously, these proposals are in the very early stages and the Government has yet to engage in wider public consultation, including with DHBs. However, the proposed outline does give a glimpse of the legal framework within which DHBs may be required to make fluoridation decisions.  We note with particular interest that, as part of this proposed framework, the Government may direct DHBs to apply standardised decision-making tools to “support DHBs to take a structured and nationally consistent approach”.
  • Be impartial – DHBs must be free of any conflict; give interested parties the right to make their views known; and take those views into consideration.  The bottom line is that DHBs will need to approach fluoridation with an open and unbiased mind.  This does not mean that Government policy will not be relevant – of course it will be. The personal views expressed by some candidates during the recent local elections may also add a further layer of complexity.
  • Act reasonably – DHBs will need to take account of relevant considerations; ignore irrelevant considerations; and, overall, pursue a proper purpose. Moreover, the substantive decision cannot be so absurd that no reasonable person could have made it. Again, what this all means in the context of fluoridation decisions will depend heavily on the statutory framework that DHBs will be required to work within.

These basic principles are critical and underpin any legally robust decision-making process. Even the most contentious issues can be safely navigated using ‘good decision-making’ principles. And, ultimately, this will significantly reduce the risk of any legal challenge.

The Government is working towards developing a Bill to introduce to Parliament by the end of 2016. When (or if) this happens the proposed powers and duties of DHBs in relation to water fluoridation will come into sharper focus.

For further information contact one of the authors – Catherine Deans or Peter Le Cren.

Catherine Deans
DDI: 03 550 0453
Email:  catherine.deans@clarolaw.co.nz

Peter Le Cren
DDI:  09 557 0357
Email:  peter.lecren@clarolaw.co.nz

This article is intended to provide a summary of the subject covered only and is necessarily general and brief. It is not intended as legal advice and nothing in the article should be relied upon without getting specific professional advice.