Based on an LLB(Hons) Public Law research paper, 2002
G. Mark Atkin B.Sc.; LLB(Hons)
This is a condensed version. See full paper (pdf).
ABSTRACT
This paper examines the decision-making process regarding both the introduction and continuation of water fluoridation in New Zealand.
It first considers the public law/medical ethics standards to be met in any such decisions. It then analyses the proceedings of the Commission of Inquiry established in 1956. This is followed by consideration of the strategy decision of the Health Department’s Fluoridation Committee to introduce fluoridation subversively rather than openly as recommended by the Commission during its Fluoridation Symposium of 1958. It then analyses the case of Lewis v Lower Hutt City Corporation, the landmark case in which the Privy Council ruled that local councils had the power to fluoridate under legislation clearly not intended for that purpose.
The paper analyses the decision of the Human Rights Commission in 1980, and the reports of the Public Health Commission in 1994 and 1995, identifying disturbing issues. The ESR 2000 report commissioned by the Ministry of Health is also examined and found seriously lacking in credibility.
The paper then studies 4 local decisions from 1999 to 2001, idenytifying a range of approaches, and reveals public consultation issues. It then analyses issues arising under the Health Act and Local Government Act.
The paper concludes that the decision-making process fails to meet the standards established at the outset, and that the reports on which the Ministry bases its policy position are seriously inadequate. It also identifies that the public want to make the decision for themselves, yet are generally poorly informed due to a number of factors.
SHORT VERSION
Water fluoridation has been a controversial issue since it was first mooted in the 1940’s. New Zealand is one of a minority of countries who fluoridate their public water supplies. In fact today only a minority of New Zealand local councils support fluoridation.
This paper first looks at the public law arguments for any enforced medical intervention and identifies that water fluoridation breaches both the conditions specified in the seminal case on this issue Jacobsen v Massachusetts 197 US 11 (1905) and The European Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine 1997.
These identify key responsibilities on those promoting fluoridation, either to the public directly or to those who ultimately make the decision:
- All citizens must be provided with full information on benefits and risks;
- Research into both beneficial and harmful effects must be continuously monitored and impartially publicised to achieve #1;
- Where a person does not consent it is arguably the responsibility of those fluoridating the water to ensure the person’s autonomy; it is not the responsibility, or at the cost, of the individual;
- Citizens must not be harmed by the measure. Where it is known that an identifiable person or group will be harmed it is the responsibility of the body fluoridating the water to ensure their safety, or if impossible to refrain from the measure.
The paper concludes that these conditions are not met with regard to fluoridation.
The Hastings Experiment 1954
This was conducted along the same lines as the American studies in Grand Rapids and Newburgh. It was conducted, not to determine whether fluoridation was effective, but to support an already decided policy of fluoridation. The unfluoridated control city, Napier was found to show less tooth decay than Hastings, and to be improving at the same rate. It was dropped as a control city, invalidating the experiment but allowing it to be falsely reported as successful, on a “before and after” basis, exactly as the US consultants had done in Grand Rapids, Michigan. Hastings was touted by the Ministry of Health as proof of benefits until it exposed as methodologically unsound and the results misrepresented in its published report by Dr. John Colquhoun (a previous dental officer) in 1986.
The Fluoridation Commission 1956
The Commission of Inquiry was established to look into the various aspects of fluoridation. It should have been objective and independent, and obtained the best information available. Such was not the case. The Commission and the information available to it was orchestrated between the NZ Dental Association and the Health Department (as it then was). The opposing view as put by lay persons who were denied assistance of legal counsel by the Commission, from private funding. No effort was made to consult the overseas authorities cited by opponents. The Commission relied on the Hastings experiment (which had barely begun) and the two US studies which have subsequently been found scientifically unsound. Interestingly, in light of the PHC 1995 report discussed below, there were many reports from Hastings of adverse health effects following fluoridation but disappearing when residents left the city on holiday. The symptoms matched those reported in the US and Canada following fluoridation, documented by leading medical specialists, yet dismissed without serious investigation and by a bizarre process of “logic” by the Commission.
Every finding of the Commission has since been refuted or brought into serious question.
Fluoridation Symposium 1958
Following the Commission, the Health Department’s Fluoridation Committee held this symposium on implementing fluoridation. What little documentation survives, having been was kept from the public, shows that it paralleled the 1951 US Conference, the full transcript of which, though also “classified” but leaked to the public, is available. In essence it determined to implement fluoridation by a campaign of subterfuge, targeting key individuals or groups to persuade privately and present as representing the public view, whilst keeping the issue out of the public arena as much as possible, a stance maintained today. This was contrary to the Fluoridation Commission’s recommendation of proper public consultation.
The Lewis Case
The Mayor of Lower Hutt launched a “personal crusade” to fluoridate the city whilst refusing to allow public consultation. Messrs Lewis and Elliott, officials of the Ratepayers’ Association, sought a court injunction against the Council. This was refused, the matter went to the Privy Council who found that Local Councils had the right to fluoridate under the Local Government Act (as it now is), contradicting the interpretation of the same wording by the Canadian Supreme Court and the High Court of Victoria (Australia). This case is the authority on this issue ands is also cited as “proving” that fluoride is not “medication”. This latter point is irrelevant as it is a “medical intervention” as currently defined in international conventions.
The Human Rights Commission Ruling
The Commission had received a number of complaints that fluoridation denied citizens their human right to decide what they would take into their own body, and on the basis that fluoridation constituted mass medication.
The report contains no original or substantial analysis. The Commission sought the views of the Health Department, NZ Medical Association, and NZ Dental Association. It also reviewed both the NZ Commission of Inquiry’s analysis of this issue, and the Tasmanian 1968 Commission of Inquiry. It describes the New Zealand Commission as considering this issue “at length”, a description the writer would challenge strongly.
It notably does not refer to any analysis by the governments of Europe who rejected fluoridation on human rights grounds amongst others. Neither does it refer to the Jacobsen case. In short it simply adopts the prevailing political view that fluoridation does not constitute a breach of human rights because people can avoid it even if at considerable cost and inconvenience.
In adopting the NZ Medical Association’s view that in any case fluoridation is permissible because compulsory treatment for VD, immunisation of overseas travellers, and treatment of mental patients are acceptable forced medical treatments, it ignores the vast difference between these situations posing a risk to the public at large and tooth decay which poses none, as the US case law does.
The Commission equates the argument about mass medication to the “false analogy of forced feeding that occurs (sic) in respect to people who have gone on hunger strike.” It concludes there is no real similarity as no attempt is made to force people to drink fluoridated water in “a direct physical way.”
Such a superficial argument must undermine the credibility of the Commission’s decision on this issue.
Public Health Commission Reports 1994 and 1995
The PHC was a Government body, separate from the Ministry of Health, established under the 1991 health reforms, with non-regulatory health responsibilities. It published two key reports on fluoridation, frequently cited today.
The 1994 Report, like the Fluoridation Commission’s report, looks prima facie thorough and impressive, but in looking below the surface the same fundamental flaws emerge: although the Commission says it has “examined” primary sources relating to critical aspects of the review it gives no indication of what assessment methods were used, if any, and then states that “emphasis” has been placed on other reviews, one being merely a literature review. Moreover those “primary sources” would have been assessed by the York Review in 2000 which found all epidemiological studies published as at that date to be unreliable. Yet this report is quoted today as authoritative. It contains material errors of fact, yet itself forms part of a “body of expert opinion”.
Only hip fracture, cancer, and dental fluorosis are examined in any depth; regarding other issues it accepts without question the opinions of other reviews. As such the review is hardly comprehensive.
It makes one important finding however: it cites studies showing that adult males in New Zealand consume a total of 1.8 mg per day and teenage males 2.7 mg per day. (including fluoride from water). If this is so, we are already close to the “optimal” level without fluoridating water, and in the toxic level during teenage years. (As at 1992) Recommended water fluoride levels were reduced from 1.0 to 0.7 ppm as a result, still in excess of the “optimal” 1 mg per day.
The 1995 report, subtitled “advice to the Minister of Health”, concluded without analysis that the use of fluoridated water in preparing baby formula was acceptable in spite of being 100 times that of breast milk (and babies need 2 to 4 times as much formula as breast milk) yet the Australian NHMRC Review specifically recommended fluoridated water not be used for infant formula in 1999, for this very reason.
Following it findings regarding increased dietary intake leading to reduced recommended levels assessment of total fluoride exposure was accordingly recommended. It also recommended that procedures be developed for identification and assessment of allergic persons. No such measures have been implemented and there is no public acknowledgement from the Ministry that such persons exist.
The ESR 2000 Review
In 2000 the Ministry of Health commissioned ESR to provide a review of any internationally published peer reviewed studies into adverse health effects of fluoridated water since the PHC review in 1994. The ESR limited their scope to cancer, dental fluorosis, and hip fracture, omitting leading research such as that of Mullinex (showing Central Nervous System damage, 1995), Luke (showing accumulation in the Pineal gland, 1997), and Masters and Coplan (showing increased Lead uptake with the Silicofluorides currently used as compared with the original Sodium Fluoride on which all clinical studies have been conducted). It covers only 14 studies from the 6 year period, reaching a general conclusion that no harmful effects have been shown from fluoridation since the 1994 PHC report. Yet it had sourced the same databases as the PHC had noted were unlikely to adequately cover adverse research. It also evidences bias and factual errors. As an example of factual error, ESR state that their view that there is no relationship between hip fracture and fluoridation is supported by the Melbourne review 1999, yet this review specifically found that the question remained unresolved and recommended further epidemiological study on Australia’s population.
This review is, to be blunt, pathetic, yet the Minister of Health refers to it as “authoritative”.
Recent Decisions
The paper reviews the procedures regarding decisions made in Petone, Onehunga, New Plymouth, and Whakatane between 1999 and 2001. It identifies a full range from determined efforts to consult the public while ensuring both sides of the argument were able to be fairly aired, to a determined effort to prevent such openness. It also identifies that the Ministry and DHB’s will stoop to underhanded tactics in line with the 1958 Symposium recommendations, for example trying to get the water supply contractor to fluoridate behind the Council’s back, and publishing a full page advertisement which can only be described as deliberately misleading and contravening the Advertising Standards Authority’s code of advertising ethics on this basis.
Conclusion
The paper concludes that the standard of decision-making on this issue falls far short of the standard against which it is to be assessed, particularly regarding the information on which decisions are based, whether by councils or the public. Although the macro level approach involving a Commission of Inquiry, monitoring reports such as those by the PHC and ESR, and public consultation, cannot be criticised on process grounds, the internal procedures of the bodies involved have been found inadequate, contributing to substantive errors which may undermine the substantive decisions of downstream bodies, regardless of their own procedures. As we have seen, the reports which inform decision-makers in New Zealand accept critiques and the conclusions of other reviews without evaluation of the reliability of those opinions, or evaluation of original research, leading to material errors of fact in their findings. The only review addressing such original research was that by ESR, unpersuasive due to its omissions, limited scope (assessing only 14 studies from a 5 year period), lack of credible analysis, and failure to meet its terms of reference. Any review body considering this issue ought reasonably be expected to comprise the best available expertise and access the best available information. Yet the Fluoridation Commission was not such a body and made no effort to obtain such information. It is of further concern that the two main medical databases, which inform medical opinion on this and other issues, were identified by the PHC as not presenting a balanced view of the available research.
The decision-making process within local councils ranges from genuine efforts to promote a fair and balanced portrayal of the issues to the voting public as in Onehunga and Petone, to questionable practices such as New Plymouth, and refusal to allow debate or public participation as in Manukau and Lower Hutt ( in the 1960s). As Onehunga showed, even the attempts at “best practice” by councils as a whole can be undermined by the predetermined position of individual councillors.
As identified, a high quality of public information is required to support informed consent. As discussed the available reviews studied do not provide full or up to date information and the public must rely on their own efforts to get a balanced picture, though in some instances assisted by local councils. With the paucity of balanced objective information publicly available no vote for or against fluoridation can in the writer’s view be described as informed.
No effort is made by the State to enable persons to exercise their right to access unfluoridated water, especially relevant to those of lower socio-economic status who may not be able to afford filters or to pay for bottled water, as espoused in the Irish Fluoridation Forum’s ethics opinion and highlighted in San Antonio.
Of particular concern is decision to withhold information regarding hypersensitive persons, whose existence was evidenced with the first fluoridation programme in Hastings in 1953, is not questioned by any world authority, and was specifically recommended by the PHC. As identified above as a key responsibility it was incumbent on the Government to implement the means of identifying, warning, and safeguarding such individuals as a minimum requirement of State responsibility.
How then is any informed decision to be made today and who should make it? As the PHC acknowledge, there is public distrust of health authorities. The Auckland Healthcare survey showed a strong public opinion in favour of public polls, rather than councils making the decision as recommended by the Fluoridation Commission. The public do not accept public bodies making personal health choices for them and do not see the technical aspects of the issue as precluding them from making a considered choice. But decision by majority vote, in this light, contains an inherent paradox: if public bodies should not make decisions for individuals, why should other individuals do so with respect to their neighbours. Moreover, the issue of protecting hypersensitive persons remains, and is not going to be addressed under any current option. In the writer’s view, this issue alone requires, following the principles identified at the outset of this paper, a moratorium on fluoridation until it can be resolved.
In the wider context of standards for decision-making and information provision, this issue has some valuable lessons. Reliance on the opinions of other reviewers, without examining source material is inherently unsound. Whilst it is unrealistic to expect each piece of research to be examined by every reviewing body, acceptance of opinions should be conditional on that other body establishing the grounds on which the original research is upheld or refuted, including critiques from both “pro” and “con” viewpoints. As a minimum, absence of a response from the researcher should automatically preclude acceptance. This would avoid the opinion “bootstrapping” described above. Perhaps the gravest concern is that such practices, while circumventing review of decisions on administrative law grounds, yet undermine the standard of decision-making promoted by administrative law rules for the safeguarding of the public interest during exercise of this statutory function by public bodies. In particular this potentially enables an unscrupulous vested interest to introduce false material into the arena “legitimising” it by the review process.
Overall the decision-making process and the consequent status quo fall short of the standards identified at the outset of this paper. Meanwhile increasing amounts of information, on both sides of the issue and of varying reliability, are now publicly available via the internet. In the writer’s view, the final decision on fluoridation will be made, not by any public body, but by the public themselves with whatever information is available. This is far from satisfactory for any medical decision but especially when the individual’s personal health choice is effectively enforced on others.