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Fluoridation judicial review decision published

Southampton resident has challenged the decision to fluoridate her water supply

Photo of tap water: istock

11 February 2011

In a judgment given today, a High Court Judge has refused a judicial review claim brought by Ms Geraldine Milner, a life long resident of Southampton, against the South Central Strategic Health Authority (SCSHA) in relation to the SCSHA Board’s decision of 26th February 2009 to instruct Southern Water to fluoridate the local water supply in Southampton and parts of South West Hampshire.

Background

Ms Milner is opposed to the proposals to fluoridate the water supply on account of the continuing uncertainties with regard to the long term health risks associated with fluoridation, as well as concerns with regard to the possible adverse environmental effects.  She also considers that more targeted and less intrusive measures should be used to deal with problems of tooth decay in the Southampton area.

In her challenge, Ms Milner argued that the SCSHA failed to have regard to the Government’s policy that mass fluoridation of drinking water should only go ahead in any particular area if a majority of the local people were in favour of it.

She also argued that the SCSHA failed to follow the requirements set out in the Regulations to evaluate “the cogency of the arguments advanced” in the responses to the consultation for and against fluoridation.

The matter was considered in a two day hearing in the Administrative Court on 19th and 20th January 2011 before Mr Justice Holman.

The Judgment

In his judgment, given today, Mr Justice Holman rejects both grounds of challenge.

As he makes clear in his judgment [para 3], the Judge is not taking a view on the merits or otherwise of fluoridating drinking water.  Rather, he is making a decision on whether the SCSHA followed the correct procedure in reaching its decision to fluoridate the Southampton and South West Hampshire area.

It is obviously disappointing that the Judge has come to the view that the SCSHA did follow the correct procedure.  However, it is important to note that the Judge states that he is “sympathetic” to the position of Ms Milner and many of the objectors to the proposed fluoridation [para 86].

The Judge also makes it clear that he considers that, on any interpretation of the responses received by the SCSHA to its public consultation, it could not be said that the local population was in favour of fluoridation [para 15].  In fact, the Judge further states that the SCSHA themselves accept it could not be said that the local population was in favour [para 39].

However, disappointingly, the Judge considers that the SCSHA were entitled to proceed with the fluoridation despite the local population not being in favour.  However, he noted that the Regulations setting out the procedure to be followed (which did not include a requirement for the local population to be in favour for fluoridation to proceed) were “markedly different” from what a succession of Health Ministers had previously said in Parliament (that the local population would need to be in favour for fluoridation to proceed) [para 23].  In evidence filed on behalf of the Secretary of State for Health as part of the case, it was accepted that “some statements in the past might have been taken as suggesting that majority local support should be a necessary precondition to a request being made by an SHA”.  The Judge also emphasised that he did not consider the Regulations to be well drafted or easy to construe [para 50].

Equally disappointingly, the Judge also found that he had no reason to suppose that the SCSHA’s approach did not substantially accord with the requirements to assess the cogency of the arguments advanced.  This is despite the SCSHA accepting that, during the course of the consultation, it changed the way in which it considered the consultation responses.  Originally, it had arranged for an independent body, the Evidence Centre, to consider and assess the cogency of the responses.  However, as the consultation proceeded, consideration of some of the evidence shifted to the SCSHA themselves, primarily Professor Newton, the SCSHA’s Director of Public Health, and his team, who effectively acted as a filter on the evidence considered by the Board [para 80].

The Judge also found that he was satisfied that the fluoridation proposals had been subject to prolonged and detailed consultation and consideration by the SCSHA Board.  This is despite the SCSHA filing evidence  confirming that it was not clear whether all of the Board members making the decision on whether or not to fluoridate had actually read the responses from the “key stakeholders” such as Hampshire County Council and Hampshire Against Fluoridation.  Only seven of the eleven Board members who voted could actually recall reading these responses [para 81].

Recent Developments

There have been a number of important developments since the SCSHA’s decision of 26th February 2009, the decision being challenged in these legal proceedings, to fluoridate the drinking water.

First of all, as set out in the Department of Health’s white paper entitled “Equity and Excellence: Liberating the NHS” dated July 2010 and subsequently in the Health and Social Care Bill currently being considered by Parliament, the Government is proposing to abolish SHAs in 2012 / 2013, with their functions being transferred to other organisations within the NHS or local authorities.

Secondly, in a consultation entitled “Healthy Lives, Health People – Consultation on the Funding and Commissioning Routes For Public Health” dated 21st December 2010, the Department of Health is now proposing for decisions on fluoridation to be taken by local authorities and that “consultations of proposals for new schemes will be conducted by local authorities using a majority rule where a scheme covers more than one local authority area” (Table A and para 3.22).

It therefore seems that the Government is now moving towards a system along the lines originally envisaged, that would require the local population to be in favour before a decision to fluoridate was made.

Responding to the judgment, Geraldine Milner stated:

“I am obviously disappointed.  This is a grim day for justice for the people of Southampton.  I am speaking with my legal team with regard to an appeal and sincerely hope to continue the fight.”

Information was correct at time of publishing. See terms and conditions for further details.


Information was correct at time of publishing. See terms and conditions for further details.

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