The High Court confirms that local authorities have a power to fluoridate drinking water and that fluoridation is consistent with the New Zealand Bill of Rights Act 1990.

The High Court's recent decision in New Health NZ Inc v South Taranaki District Council dismissed two key arguments, namely:

  • that local authorities do not have a power to add fluoride to drinking water under the Local Government Act 2002; and
  • fluoridation is inconsistent with the right to refuse medical treatment in the New Zealand Bill of Rights Act 1990 (NZBORA).

The first argument has an interesting background.  In the 1960s, the Privy Council (NZ's highest Court at the time) held that local authorities have an implied power to add fluoride to drinking water under the local government legislation of the day.  The High Court found that local authorities still have such a power in light of the Local Government Act 2002 and the Health (Drinking Water) Amendment Act 2007.

The second argument centred around how public health measures, like fluoridating drinking water, interact with an individual's right to refuse to undergo medical treatment in section 11 of NZBORA.  The Court carefully reviewed and summarised the global authorities on fluoridation before dealing with this issue in the New Zealand context.

The Court concluded that although fluoridation has therapeutic purpose, being the reduced incidence of dental decay, it does not constitute "medical treatment".  Therefore, the right to refuse to undergo medical treatment was not engaged. 

The Court found that the wording of section 11 strongly suggests that "medical treatment" refers to medical services given by a qualified practitioner to an individual patient in a professional setting.  By contrast, fluoridation is a public health initiative, like chlorinated drinking water, iodised salt, and pasteurised milk: all which have a therapeutic purpose, but none of which are "medical treatment".

It was also important that if the right to refuse applied to public health initiatives, an individual's right to refuse could act as a veto on public health initiatives.  Such a veto could deny others' ability to enjoy the benefits of public health initiatives which the Court observed "is not only the right but often the responsibility of local authorities to deliver". 

The decision comes at a time when many local authorities are grappling with fluoridation issues.  Several local authorities have held off making their decisions until this judgement was released.  The decision provides clear guidance on the law regarding fluoridation.  It may yet be appealed.