The South Taranaki District Council decision to fluoridate the water supplies of Patea and Waverly is being questioned through judicial review by New Health New Zealand (NHNZ). Among other things, NHNZ claims that addition of fluoride to public water supply breaches the New Zealand Bill of Rights Act (1990) S11, which states “Everyone has the right to refuse to undergo any medical treatment.”
In order to complete this argument they must defend the premises that (1) fluoridation of water is a medical treatment under the Act, and (2) that consumption of fluoridated water from the public supply cannot be refused in the relevant sense.
Neither premise is straightforwardly acceptable. Is fluoridation a medical treatment like vaccination or merely a health-promoting (setting aside claims to the contrary) mineral like iron? When it is present in water without being an additive, is it still a treatment? If so, is eating a balanced diet a medical treatment because it promotes good health? If fluoride is harmful to health as anti-fluoride campaigners seem to think, is elimination of it from the water supply a medical treatment? Medical treatment is not, it seems to me, a well-defined category and I don’t see compelling reasons on either side. However, I think clearer and more decisive debate can be had in other aspects of the argument.
Paradigmatic medical treatment is individualisable and the effect of the right to refuse it primarily accrues to the right holder directly. My right to refuse the surgery you recommend for me allows me to forgo something done to me, and the benefit or cost of forgoing it accrues to me in the first instance. The fluoridation in this case (if it is a medical treatment at all) is a treatment deployed at the public level rather than that of the individual, so it cannot easily be distributed to all and only those who want it. Nevertheless, one can exercise a right of refusal by obtaining the water one desires elsewhere (such as by filtration, bottled non-fluoridated water, or if you live in Dunedin going to the Speights Brewery and filling as many containers as you like from the tap outside). Exercising the right in this way is primarily self-regarding and is quite compatible with the liberal, individualist foundations of the right. Given this, premise 2 (that fluoride cannot cannot be refused) looks false.
But it seems that the argument being made is that the public health measure in its entirety must be abolished. This seems like claiming that a human right to refuse oxygen is best asserted by eliminating earth’s atmosphere rather than the holding one’s breath. Given that abolishing fluoride is not required by the right to refuse treatment, this line of argument seems in need of further justification. In fact, it suggests that a separate right needs to be asserted by the anti-fluoride campaigners: that they have a claim-right to a non-fluoridated public water supply, and the council has a duty to provide it by halting fluoridation (and removing any naturally occurring fluoride?). I haven’t heard it reported that this is part of the case being made by NHNZ, and I have no idea whether there is a legal means available for asserting such a right.
Given this description, it might be possible to cast the situation as fundamentally a clash of claim-rights between those with sufficiently strong interests in fluoridated and non-fluoridated public water supplies, respectively, which justify holding the council to a duty to provide it. Since it can’t do both, in these cases, and other things being equal, it is best to choose the option that minimises the overriding of rights. Or jettisoning the rights-talk, choosing the option that satisfies the greatest weight of interests. Given recent referenda, this seems to be to continue with fluoridation provided those who want to refuse have the ability to satisfy their preference for non-fluoridated water by other means.
It is worth noting that other things are not necessarily equal, in that dental health is often worse in those in society with the least, and it is for these people that fluoride seems to be of greatest benefit. To the extent that one cares about reducing health inequalities by improving the welfare of the worst off, this gives a further reason not to reduce access to this public health measure.
News coverage of the case:
- Fluoride use questioned in court
- Legal Wrangles Threaten Hamilton Fluoride Decision
- Fluoride use questioned in court
- Councils have a ‘right’ to fluoridate, court told
- Test court case tackles fluoridation issues
- Fluoride court case continues