Ninth Meeting 14th June 2001
Presentation by Professor William Binchy
Presentation by Dr Doreen Wilson
Presentation by Dr Patrick O’Sullivan
Presentation by Dr Andrew Rynne
Presentation by Professor William Binchy
Trinity College, Dublin
Professor Binchy, Regius Professor of Law, Trinity College Dublin made his second presentation to the Forum; this paper was entitled ‘Fluoridation: The Legal Dimension’.
He commenced by pointing out that when examining the legal dimensions of the provision of fluoridation through the water supply, a fascinating complexity of important issues is encountered, regarding the relationship between the State and the citizen and the reconciliation of the norms of welfare and paternalism with those of autonomy, privacy, bodily integrity and human dignity.
Encapsulated in this narrow aspect of health policy are some of the crucial questions of how democratic society is to accommodate differing perceptions of what is good for citizens, who should decided what is good and ultimately whose views should prevail.
The legal answers, Professor Binchy stated are largely framed in terms of an analysis of the Irish Constitution. On first consideration, the answers are clear. There is judicial authority in respect of the Constitution, which seems to put the matter beyond debate. In the High Court and Supreme Court challenges in the 1960s, the validity of the legislation providing for the fluoridation of water supplied to the public was upheld. However, Professor Binchy made the point that it would be a mistake to assume that further legal analysis of the issue is foreclosed. Two reasons for this were then explained: one empirical and the other normative.
As far as the empirical dimension is concerned, the issues surrounding the safety and health implications of fluoride in the water are always subject to being revisited by the judiciary. This point was illustrated by reference to judicial commentary on the fact that scientific evidence may differ from case to case as scientific knowledge increases and views of scientists alter.
As far as the normative dimension is concerned, there is an inevitable lack of closure. Constitutional norms, relating to personal rights and other crucial criteria, integral to the constitutional process, are never stated finally by the courts, with no possibility of further reconsideration.
Professor Binchy then outlined the reasons why this should be the case in regard to the Irish Constitution.
Article 40.3 confers constitutional protection on the personal rights of the citizen without specifying expressly a list of these personal rights. The courts thus have a continuing role in articulating the nature and scope of these rights. It is therefore possible that, having made a determination that a particular statutory provision is constitutionally valid, the court may at some later time hold that it is not because in the meantime it has identified a particular, previously unspecified, personal right which renders the provision unconstitutional.
Since the court challenges in the 1960s to the Water Fluoridation Act, several previously unspecified personal rights have been articulated by the courts, some of which are clearly relevant to the fluoridation issue. The rights to privacy, bodily integrity, health, autonomy and dignity had not received express judicial recognition prior to the Ryan court case.
Professor Binchy made the point that while these rights to some degree are manifestations of a more general philosophy as to the role of the individual in society and the extent to which the forces of government may restrict individual life choices, they nonetheless merit examination since they have been identified as distinct legal rights.
The right to bodily integrity was first discussed. Justice Kenny took this to mean that “no mutilation of the body or any of its members may be carried out on any citizen under authority of the law except for the good of the whole body and that no process which is or may, as a matter of probability, be dangerous or harmful to the life or health of the citizens or any of them may be imposed (in the sense of being compulsory) by an Act of the Oireachtas.” Justice Kenny expressed his understanding of the right to bodily integrity in negative rather than in positive terms when he stated that:
“If then the Act of 1960 imposes the consumption of fluoridated water on the citizens and if that is or may, as a matter of probability, be dangerous or harmful to the life or health of any of its citizens, the plaintiff’s right to bodily integrity would be infringed and the legislation would be unconstitutional.”
Professor Binchy provided a detailed discussion on the whole area of bodily integrity as defined by Justice Kenny and made the point that the law after the Ryan case was left in the somewhat unsatisfactory state that a right to bodily integrity had been recognised under Article 40.3 of the constitution, but that its scope had not been determined at the appellate level.
Professor Binchy illustrated his talk with references to various legal decisions in which the right to bodily was challenged by a number of individuals. In summarising the present scope of the right to bodily integrity, he pointed out that a gradual extension has taken place over the years and that the right is sometimes equiparated with the right to life.
The alternative basis articulated by Justice Kenny, based on a concept of mutilation, has given way to a general right not to have physical contacts to which one does not consent. The right to bodily integrity is enforceable, not just against legislation which violates it, but also conduct (whether by way of act or omission) by the Executive or even private individuals.
On the issue of right to health, Professor Binchy, made the point that while the courts have at times categorised as one the rights to bodily integrity and health, they are logically distinct. The judicial analysis of the right to health, unconnected with the right to bodily integrity, is somewhat sparse.
The right to privacy was then discussed; the courts in several decisions have referred to a constitutionally protected right to privacy and in a few decisions have invoked it as the basis of their determination of specific legal issues. The right still lacks conceptual coherence, which makes it difficult to anticipate its impact in the context of water fluoridation. Here again a number of court cases and decisions were used to illustrate this topic.
The right to autonomy was next considered. The courts in recent years have placed a strong emphasis on autonomy as a constitutionally protected value. It is inherent in the right to personal liberty.
The right to dignity was the subject of a number of court cases over the years, and Professor Binchy referred to the various decisions made in his discussion. Views on a definition of dignity varied from a value inherent in the person to a quality that can depart from the person by virtue of external circumstances.
Professor Binchy then proceeded to consider the implications of the judicial recognition of the rights of health, privacy, autonomy and dignity, and the judicial development since the High Court constitutional challenge of the right to bodily integrity on the fluoridation issue.
If the constitutional validity of the fluoridation of public water supplies were to be challenged in new litigation, then it is certain that, as well as modern scientific evidence being adduced, the plaintiff’s lawyers would invoke this panopoly of individual-centred rights as a counterpoint to the paternalistic and communitarian policies underlying the legislation. Undoubtedly the common good must be balanced against individual rights. Viewed from the perspective of 2001, the emphasis on the common good seems more difficult to reconcile with the values of privacy and autonomy. Professor Binchy referred to the Preamble to the Constitution which sees no conflict between the common good and individualist norms and which postulates the promotion of common good, mediated by due observance of Prudence, Justice and Charity, as a precondition of the assurance of the dignity and freedom of the individual.
Professor Binchy then summarised the impact of the personal rights, discussed above on the fluoridation issue. An individual has the right of autonomy or self-determination: i.e. to choose what contacts in which he or she engages.
The right to bodily integrity also gives the individual the right to set down parameters of such contacts.
The right to privacy is somewhat more incoherent but carries with it the notion that an individual is entitled to live life in accordance with his or her life-plan and values, save to the extent that this trenches illegitimately on the rights of others.
The right to dignity is still more uncertain in its scope. The judicial view that dignity can be compromised by external factors suggests that the compulsory intrusion of a foreign substance into the body might be regarded as infringing the right to dignity.
Looking at these several rights in conjunction it might be argued that, if an individual is entitled to refuse medical treatments, even where that decision is “not necessarily based on medical considerations”, it would be odd if the individual should be obliged by law to subject himself or herself to the incursion within his or her body of s substance which he or she does not wish to imbibe. On this view, the Executive is, of course, entitled to advocate a particular life-style, which is a healthy one, but it is not constitutionally permitted to force this life-style on its citizens. In responding to this argument, the courts have several points, which they could credibly say represent the limit to permissible action by the Executive. They could for example, hold that the Executive is perfectly entitled, not only to advocate a particular life-style, but by its policies to narrow choices so that this life-style, for practical purposes, becomes the only one available to citizens in particular areas of their lives. For example, the law banning marijuana is not unconstitutional on account of its interference with choice and a law banning the sale or consumption of cigarettes would also appear to withstand constitutional challenge on this ground. Similarly, a law that adopted a differential taxation policy to make certain life-style choices, stigmatised on health grounds, difficult or, in practice, impossible to engage in would not be unconstitutional.
Professor Binchy made the point that the problem with fluoridation in water supplies is that it involves the non-consensual incursion of s substance into the body. The courts could approach this issue in a several ways.
The first and most radical would be to hold that all non-consensual incursions are unconstitutional, on the basis that they violate the rights to bodily integrity, privacy, autonomy and dignity.
The next approach would be to distinguish between different incursions and to permit those that might be regarded as “natural”.
Justice Ryan did not accept that fluoridation of water could be described as mass medication or mass administration of “drugs” through water; Professor Binchy feels that it is far from clear that a court would adopt the same characterisation. Characterisation is important in this context because, if a particular process is characterised as falling under the general umbrella of medical treatment, then it will be treated distinctively for legal purposes. While the Ward of Court Case ruled that a person has a constitutional right to refuse medical treatment, Professor Binchy argued that it is therefore hard to see that there is nonetheless an obligation to submit to legislatively authorized State action that constitutes medical treatment.
He went on to make the point that while it is not at all clear that fluoridation of water supplies is medical treatment, it admittedly has an intended health benefit and medical treatment can be prophylactic in character and that a court might nonetheless baulk at describing the process as medical treatment.
The third approach in Professor Binchy’s opinion would be that the court might concentrate on the legitimacy of public health policies. In essence, the Government may be seen as having, not merely an entitlement, but also an obligation to protect the health of its citizens. A necessary element of this duty is making rules, which curtail the rights of citizens, to a greater or lesser degree, in order to accomplish these public health goals.
A question of proportionality thus may be considered to arise. Just as public health will not justify all such curtailments of rights, equally a public health goal will serve to justify some curtailments, provided they are rational and proportionate. This approach was adopted by the Supreme Court in the Constitutional Challenge in 1960: “the method (water fluoridation” undoubtedly does result in a minimal interference with the constitution of the body, but such interference is not one which in any way impairs the functions of the body or, to any extent discernible by the ordinary persons, its appearance.”
Professor Binchy is of the opinion that it is highly likely that the courts, with some modifications as to scientific and social factors, would take the same view of the legislation today.
In summarising the legal position in relation to the fluoridation issue: the result of the Ryan case is not a guarantee that the courts would today make an identical holding of fact or law. Professor Binchy pointed out that he was not competent to address the scientific questions involved or to predict how the courts would determine them. If, however, a court were to conclude that fluoridation is harmful, then inevitably the legislation would be held unconstitutional. If, however, a court were to conclude that fluoridation is not harmful but beneficial, that does not necessarily mean that legislation would be upheld since it could still be considered to infringe any one or more of the constitutionally protected rights. It was Professor Binchy’s personal view that the courts would be very reluctant, and therefore very unlikely, to come to such a conclusion.
Dr Wilson, Chief Dental Officer Northern Ireland, presented an overview of oral health in Northern Ireland. She commenced her presentation by speaking about the 1995 Oral Health Strategy for Northern Ireland, which has recently been the subject of a mid-term evaluation.
The overall aim of the 1995 strategy was: ‘to achieve acceptable oral health of teeth and other oral structures, which would allow an individual to:
- Be free of pain and discomfort
- Eat efficiently
- Speak clearly
- Socialise without embarrassment
- Be free of life threatening diseases
and which, if maintained, give a reasonable expectation that these benefits would continue throughout life and would contribute to the individuals general well-being’.
The strategy document was written under the presumption that fluoridation of public water supplies would take place. Fluoridation was expected to secure an impact over and above the existing trend of improvement in the oral health status of children. It was to be the main element of policy shift with respect to oral health and marked a significant policy development.
However, the decision in 1997, by the Minister for Health and Social Services, not to proceed with fluoridation removed the cornerstone of the original strategy. As a consequence, the outcome targets for children’s teeth set in 1995 had to be revisited in 1998.
The following revised outcome targets were set for 2003 (the magnitude of the downward revision demonstrating the extent to which the strategy depended upon the introduction of fluoridation):
- To increase the percentage of 5-year-old children with no caries experience from 37% to 45% (original target 60%)
- To reduce the average number of carious teeth in 5-year-old children from 3.0 to 2.2 (original target 1.5)
- To increase the percentage of 15-year-old children with no caries experience from 15% to 20% (original target 25%)
- To reduce the average number of teeth with caries experience in 15-year old children from 5.3 to 4.0 (original target 3.3)
Targets for adults were not revised. Additional funding of £0.5 million was made available to deal with these revised targets.
There has been a general improvement in the health of children’s teeth; however, in 1993 the average quality of children’s teeth in N.I. was below that of Britain and the Republic of Ireland. This was largely explained by the fact that fluoridation was more common in the UK and ROI, and that the incidence of social deprivation was higher in Northern Ireland. Dr Wilson illustrated these points with graphs showing comparative levels of caries in children resident in the three jurisdictions in 1983/84 and 1993/94/95.
The mid-term evaluation was undertaken to assess the way in which the 1995 recommendations have been implemented and the impact on oral health which these actions had to date.
Where appropriate, revisions of existing targets were suggested and a series of other recommendations were produced.
Since the publication of 1995 Oral Health Strategy, a number of significant events had an impact upon its delivery.
- The decision not to proceed with fluoridation of public water supplies.
- Increased consumption of sugary foods and beverages and changes in eating patterns
- Improvements in health care products and
- Growth in private dentistry
The broad finding of the evaluation was that progress towards meeting the revised dental caries targets had been impressive and, to a significant extent, the 1995 strategy could be considered effective in underpinning these gains in oral health.
However, the evaluation also recognised that the progress made on reducing dental caries is not solely a result of the 1995 Oral Health Strategy, but has been directly influenced by the availability to the public of a better and wider range of oral hygiene products and by improvements in the eating and dental hygiene patterns of individuals.
Given the degree of success of the Strategy to date, many of the targets set for children and adults were therefore revised so as to remain challenging.
At this stage Dr Wilson discussed a number of the revised targets for children and adults:
The current target should be raised for 45% to 50% of 5-year-old children with no caries experience by 2003.
The target should remain at 2.2 for the average number of teeth with caries experience in 5 year olds by 2003.
The current target should be changed from 20% to 25% of 15 year olds with no caries experience by 2003.
The target should remain at 4.0 for the average number of teeth with caries experience in 15 year olds by 2003.
The target for 2008 should increase to 16 sound and untreated teeth per adult.
The target for 2008 for adults with no remaining teeth should be changed from 10% to 8%.
The target for 2008 for adults with 18 or more sound teeth should be changed from 35% to 40%.
In the light of inequalities in children’s oral health, fluoridation of public water supplies should be urgently reconsidered.
A consistent approach to school screening should be adopted.
Community Dental Service should be reviewed in light of changing dental practice, patterns of working and the oral health of N.Ireland.
Health boards must identify inequalities in oral health, propose remedial action and target resources and services to areas of greatest need.
Pending reconsideration of water fluoridation, the DHSSPS should identify alternative methods of fluoride delivery.
The Chief Dental Officer will be closely associated with the development of the Public Health Strategy and will work closely with the Health Promotion Agency
Health promotion opportunities to include the use of mouth guards, first aid for dental trauma and measures to reduce maxillo-facial injuries in road accidents.
In conclusion, Dr Wilson made the point that Northern Ireland children still have poorer teeth and higher levels of disease than their counterparts in the UK and the Republic of Ireland, and that the recommendations outlined above must be implemented along with an urgently required delivery method for fluoride.
Dr O’Sullivan a member of the Irish Doctors’ Environmental Association, presented the Irish Doctors’ Environmental Association’s position paper on fluoridation. The association believes that ‘ there are already too many chemicals in our environment without adding more. Ireland is one of the few remaining states in Europe to persist in the practice of fluoridating its water supply. Ireland should now stop adding fluoride to its water supplies. Instead, the country should promote improved nutrition and dental hygiene as a more common sense approach to improving dental health, while strenuously attempting to eliminate or reduce social inequality’.
Dr O’Sullivan detailed the views of his association and made the following points.
Firstly, he referred to the difference between safe and harmful levels of fluoride and to the concerns of his colleagues as to the vulnerability of premature babies and people with poor kidney function.
He then spoke about the lack of information on base-line levels of fluoride in the Irish population before fluoridation was commenced. He queried the rational of dispensing fluoride via drinking water, where the actual intake of any individual is unknown, as it depends on the amount of water a person consumes each day, and on the ingestion of fluoride from other sources.
He stated that the hydrofluosilicic acid used to fluoridate the water is an industrial waste product and has not been tested on animals or humans, or been approved for human consumption. He referred to studies that linked fluoride itself to harmful effects, but did not cite individual studies or the names of the authors.
Dr O’Sullivan referred to the fact that while dental health has improved in those resident in both fluoridated and non-fluoridated areas and has been attributed to improvements in nutrition and dental hygiene, associated with improving socio-economic conditions, nonetheless improvements in dental health in fluoridated areas retain a socio-economic gradient. In elaborating on this latter point, he stated that by passively improving the dental health of people in lower socio-economic groups by fluoridating their water supplies, we are failing to address the underlying cause of their poor dental health, i.e. poor nutrition and poor dental hygiene related to the deprivation and socio-economic inequity that persist and appear to be increasing in our society.
In conclusion, Dr O’Sullivan gave some personal views on the subject, when he stated that after living and working in third world countries for much of his career, the ability to have a regular supply of clean water is of greater importance to him than worries about chemicals that may be in that water.
Please see final report of the Forum for comments on some of Dr O’Sullivan’s claims. These were discussed with Dr O’Sullivan following his presentation to the Forum.
Dr Rynne queried the impartiality and open mindedness of the members of the Forum on the question of fluoridation. He stated that most members are on record as staunch supporters of ‘the mass and enforced dosing of the citizens of this state’,a fact that he felt was not helped by the Minister’s opening address where he stated his support for fluoridation.
He referred to the dramatic fall in the incidence of dental caries since the introduction of fluoridation, but held the view that fluoridation was not the major cause for this decline. He believed that better nutrition, dental hygiene, housing and education were major contributing factors.
Dr Rynne’s strongest objections to the continued fluoridation of our water supplies are philosophical rather than scientific. He stated that ‘ every time I go to my cold tap to make a cup of tea or to water my whiskey I am robbed of my freedom of choice. I am forced to ingest an unknown quantity of an unknown, unlicensed and unproven pollutant that has no known safe levels and no known recommended dose’.
He held the view that this is unprecedented and unacceptable in a free society.
He referred to the beneficial effects of topical fluoride and to the availability of fluoride containing products in the supermarkets.
Referring to the Health (Fluoridation of Water Supplies) Act, Dr Rynne alluded to the fact that in the ‘forty years of enforced dosing, not one single survey has been carried out’.
In conclusion, Dr Rynne mentioned that while water fluoridation is statewide in only Ireland and Singapore, and that 98% of Europe is fluoride free, dental health in Ireland is lower than most non-fluoridated countries.
Please see final report of the Forum for comments on some of Dr Rynne’s claims. These were discussed with Dr Rynne following his presentation to the Forum.