Asking Auckland Council - does s116E of the Health Act undermine & contradict other legislation that officials are legally required to consider?

Doe s116E force officials to close their minds to potential health harms? No requirement of D-G to consider safety, nor balance reduction in caries incidence with other health-based risks.

This last Monday past, August 26 2024, I addressed Tauranga City Council, along with 2 other presenters, Robert Coe and Dr Alanna Ratna on the subject of fluoride.

Topic: TCC Ordinary Council Meeting.

Presentation of Report: Fluoridation of Tauranga city's water supply. File Number: A16415420. Link to August 26 meeting.

Council to vote on: Fluoridation of Tauranga’s water supply.

Elected members voted to seek an extension to defer the fluoridation of Tauranga’s water supply (see NZH coverage here).

It’s evident that the Director-General (D-G) of Health’s orders to fluoridate water has flustered council management and elected officials across New Zealand- because of the extraordinary fines that the Director-General might or might not impose.

(To get a handle on fluoridation-related decision-making: PSGRNZ Fluoride Timeline.)

During the TCC meeting legal opinion by staff seemed focussed solely on the D-G’s order and the prospective fines.

But has the fluster - resulted in management, elected members, and their council-paid lawyers that represent rate-payers and residents -

… failing to sit back and assess whether this teeny tiny little section (s.116E) might be,

(as I suggested in my address to Tauranga City Council)

- terribly drafted?

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Which begs the question:

Has the Council in our biggest city asked their Council-paid lawyers this very question?

Hence today’s Official Information Act request.

To Auckland Council

Subject: Official Information request - Fluoride - legal advice received by Council does S116E undermine and contradict other relevant legislation?

Dear Auckland Council,

Please note: Joseph on Constitutional and Administrative Law (5th Edition) (2021)

10.8 Obedience to convention: Every primary rule of obligation, including conventions, risks being flouted from time to time. Politicians will be guided by their political instincts and may weigh up the advantages of breaching a convention and risk the political consequences.

Politicians may seek refuge in the uncertainty of conventional rules and stand their ground. It may be disputed whether a convention exists, or what obligation it prescribes, or whether an agreed convention is applicable.

23.2.3: The duty to weigh mandatory statutory considerations extends to facts so relevant that Parliament would have intended them to be taken into account. Decision-makers cannot accord appropriate weight to contesting considerations without being in receipt of the relevant facts.

Public concerns reflect, following Joseph (2021), the fact that formal risk assessment, and medical drug trials are administrative law conventions where robust methodological processes must be followed; which promote trust in regulatory authorities; - may have been set aside with respect to fluoride's potential toxicity.

PSGR are concerned that a departure outside convention, for example, the failure of officials to follow good process, robust, trusted, methodological processes required in science and in the assessment of scientific information, may

1. Promote a breakdown in public trust of authorities, specifically, the Ministry of Health;

2. Deter and limit the capacity for officials to identify harm before it occurs;

3. Create alarming precedents for over-enthusiastic officials who may be unaware of the convention of risk assessment in the assessment of medical drugs (used for therapeutic purposes) and hazardous substances (emitted into human bodies and the environment).

The public have never been granted the opportunity to debate the Director-General of Health's claims that the Office of the Prime Minister's Chief Science Adviser's reviews of fluoride (2014 and 2021), are scientifically valid and fit for purpose as a policy document to permit mandatory fluoridation.

Judges appear to have not 'twigged' that without a robust and transparent methodological process to assess the available science, reviews by officials must be considered as politically dubious, and cannot be asserted as scientifically valid for policy purposes. I.e. as a 'single source of truth'.

Please note that the third document cited by the D-G, a Cochrane study (2015), was rigorous, but was not a review of the literature of the safety of fluoride, as the only risk factor considered was fluorosis.

Please note that neither the public, nor relevant scientific experts have been permitted to formally respond to the OPMCSA 2014 and 2021 papers. In 2017 the Select Committee declared that public input on safety of fluoride was out of scope of the consultation, and later in the 2021 Inquiry, the Inquiry Committee then stated that the science had been settled in the 2017 process.

Links to fluoride decisions, including committee documents are available on this page:

Fluoride Timeline - New Zealand Decisions & Key International Findings.

The public are increasingly concerned that local authority officials may risk limiting their consideration relating to fluoridation of drinking water to orders under s116 in the Health Act (1956) to the exclusion of other legislation that this newly inserted s116E may unfortunately undermine or contradict.

Please advise on which dates Auckland Council have sought legal advice, and received a response on the following issues:

1.The Health Act 1956 requires that Auckland Council protect health. s.116E of the Health Act requires that you fluoridate municipal water:

a. Legal opinion on protecting health, if under the S.116 purpose, or s.116E there is no clause requiring that the Director-General of Health must consider the safety of fluoridated water, either into human bodies or the environment.

b. Legal opinion on the authority of the OPMCSA reviews (2014, 2021), should judicial review take into account the absence of risk assessment undertaken, with the dilemma that the only claimed scientific opinion are these OPMCSA reviews where the authors did not include a methodology and transparent process to review, assess and update the quality of information relating to the hazard and risk of fluoride. Not limiting such an assessment to potential IQ loss in young children under 8 years, but including other risks including dental fluorosis, skeletal fluorosis, paediatric arthritis and other neurodevelopment and cognitive risks.

c. Legal opinion on the precedent that the OPMCSA reviews potential establish with regards to an absent to risk assess future medical treatments in drinking water, the absence of consideration of the full compound hydroxyfluorosilic acid, and hazardous chemicals that are released into municipal water and into the environment.

d. Legal opinion on the authority of the recent NTP monograph on cognitive neurodevelopmental risk to young children exposed to fluoride. Where NTP toxicological assessments are recognised globally as an authoritative source of scientifically valid information, and where domestic regulatory agencies themselves have not conducted such a review.
NTP Monograph on the State of the Science Concerning Fluoride Exposure and Neurodevelopment and Cognition: A Systematic Review. NTP Monograph 08. National Toxicology Program Public Health Service U.S. Department of Health and Human Services.

e. Legal opinion on risks and benefits to health as s116E requires the Director-General of Health to consider financial cost and savings of adding fluoride - but does not require the D-G to balance or weight a claimed reduction in dental caries with potential adverse health outcomes which may include but is not limited to the following, a reduction in IQ, dental fluorosis, skeletal fluorosis, paediatric fractures and osteoarthritis. Legal opinion on whether this s116E does in fact undermine the purpose of the Health Act as does not appear to require officials to consider health-based trade-offs.

f. Legal opinion on the dilemma that only fluoride is required to be added, but it is not medical grade fluoride that is added, but a slurry, hydroxyfluorosilicic acid.

2. Legal opinion on whether the s116E may contradict or remove the capacity for officials to take the Local Government Act 2002 into account as they are acting directly under the orders of the Director-General of Health?

s125(f)- TA must ‘identify and assess any other public health risks relating to the drinking water services supplied to the community’

3. Legal opinion on whether the s116E may contradict or remove the capacity for officials to take the Water Services Act 2021 into account with respect to the fact that 'other causes' could lead to higher exposures that might impair the IQ of young children, and harm people on dialysis machines. s116E may lead to officials setting aside obligations under Water Services Act s.7(1) orders of the Director-General of Health?:

Water Service Act - s.7 (1) Meaning of safe in relation to drinking water means drinking water that is unlikely to cause a serious risk of death, injury or illness,-
Immediately or over time; and/or - whether or not the serious risk is caused by (ii) other causes together with the consumption or use of drinking water.

Specifically - legal opinion on whether 'other causes together' may include:
a. Issue of children having higher urinary fluoride levels than adults.
‘t Mannetje A, Coakley J, Douwes J. (2018) Report of the Biological Monitoring of Selected Chemicals of Concern. Results of the New Zealand biological monitoring programme, 2014-2016. Technical Report 2017-1. March. Centre for Public Health Research (CPHR). Massey University. Wellington.
b. Toothpaste exposures.
c. History of MAV exceedance, even remote possibility that this might happen.

And legal opinion on whether precaution should be taken into account under the Water Services Act (2021) with regards to the potential risk to very young children.

4. Legal opinion on whether risk assessment, and the requirement that hazardous substances and medical drugs undergo trials to assess risks to health by age and bodyweight, using rigorous methods to assess risk to health by age and bodyweight, are conventions that promote trust in regulatory decision-making, and whether the Ministry of Health ignoring such a convention is appropriate in a constitutional monarchy and parliamentary democracy.

5. Legal opinion the legality of the New Zealand Environmental Protection Authority failing to conduct risk assessment of fluoride and hydroxyfluorosilicic acid for 40 years, and also failing to assess emissions from wastewater treatment plants into receiving environments for 40 years.

Increasing numbers of the New Zealand public are concerned that officials may not be taking steps to understand the safety of fluoride under the full extent of their powers, and that a newly added s116 may be undermining existing responsibilities under different laws, including acting to undermine the greater purpose of the Health Act (1956), as there is not capacity in that legislation, and hence no obligation, for officials to balance competing health-based risks in an appropriate, scientifically and methodologically rigorous manner.

Yours faithfully,

J Bruning.