The recent challenge by Geraldine Milner to the decision reached by the South Central Strategic Health Authority (the SHA) to add fluoride to the local water supply saw proponents of fluoridation, who claim that it is an effective and value-for-money way of reducing the incidence of tooth decay, not least among socially disadvantage children, ranged against those who believe that fluoride carries a risk of tooth mottling and, possibly cancer and should therefore not be added to the water supply at source.

On 26 February 2009, after a process of public consultation, the SHA decided that fluoridation should be introduced in an area in and around Southampton, affecting a population of approximately 195,000. Mrs Milner, a local resident opposed to fluoridation, sought to allege that the SHA reached its decision by a process that was so defective as to be unlawful. Specifically, that the SHA had failed to have regard to the applicable Government policy, which was (it was alleged) that no new fluoridation scheme should be introduced unless it could be shown that the local population was in favour.

The relevant regulations stated that an SHA should not proceed with any steps regarding fluoridation unless, “having regard to the extent of support for the proposal and the cogency of the arguments advanced, the authority are (sic) satisfied that the health arguments in favour of proceeding with the proposal, outweigh all arguments against proceeding”.

The claimant’s argument was rejected on the following grounds:  

  • It was not clear that the final policy of the Government, at the time the regulations were made and at the time of the decision, was in the terms contended for by the claimant.
  • A policy in those terms (if indeed that was the Government’s policy) was never communicated by the Government to strategic health authorities generally nor to this SHA, so they could not have acted unlawfully or irrationally by not complying with it;
  • A policy in the terms alleged was inconsistent with the statute and regulations which the SHA appropriately considered and applied. The SHA had, broadly, adopted the correct approach in deciding that, in the light of the extent of support for and opposition to the proposal, the health arguments in favour of fluoridation were still so weighty that they should prevail.  

The judgment can be accessed here.