Judgement reserved in Milner case against Strategic Health Authority

by the ANH-Intl team

The case brought against the South Central Strategic Health Authority (SHA) by Southampton resident and opponent of water fluoridation Geraldine Milner has been heard in the Royal Courts of Justice. Ms Milner’s case was about whether or not the SHA acted legally in making its decision (back in February 2009) to fluoridate the water in Southampton and some of the surrounding areas, despite opposition from 72% of the respondents in the public consultation. It was also about whether or not the SHA board sufficiently evaluated the cogency of all the given arguments in the consultation responses. At the end of the two-day judicial review (JR), Mr Justice Holman reserved Judgement for some future date.

In March 2005, in a Parliament debate preceeding required approval for draft regulations concerning fluoridation, Lord Warner (the Parliamentary Under-Secretary of State, Department of Health), re-iterated a key policy statement made two years earlier. He said that "it is fundamental to our policy that a strategic health authority should only arrange for its drinking water to be fluoridated where the local population is in favour" Such statements tend to stick in the minds of those against water fluoridation.

Inconsistency, ambiguity and confusion

As both sides of the case were heard, it became clear that there were key inconsistencies between stated government policy made in Parliament debates about fluoridation, and the Water Fluoridation (Consultation) (ENGLAND) Regulations (2005), and also later, with issued guidance from the Chief Dental Officer! Key in this case was the issue of regard for public support or opposition to the fluoridation proposal, and the influence that this should have on the SHA’s decision. Suggestion and exploration within the courtroom of the meaning of regulation 5 revealed that even this was ambiguous and confusing, and inconsistent with the ‘explanatory note’ at the end of the Regulation document. This all appeared to prompt the judge (Mr Justice Holman) to remark: “This case would seem to point up a state of confusion about what government policy was, and so it may be that it would be desirable in Judgement, for cases in the future, to clarify what the position is of the Secretary of State, and Government”.

Commenting afterwards, Stephen Peckham, Chairman of the Hampshire Against Fluoridation group said: “I think what we have done (during the JR) is pick at the English language and the law, and what we have found is that there is huge ambiguity! It's not clear what the interpretation is!” It seems that the language of the law could be interpreted to suit both sides of the argument. And, of course, such a linguistic and grammatical detour helps the SHA's lawyers from dealing with the central theme of the case: the SHA made their decision to fluoridate the water supply despite nearly 3 out of 4 members of the public surveyed saying they didn't want it.

Clear wording, requiring support from the local population as a prerequisite for water fluoridation, was present in regulation 5 of the earlier 2004 draft regulations governing Water Fluoridation (Consultation) (ENGLAND), but the wording in the approved 2005 version was quite different. Why, we wonder, was it seen fit to alter this wording?

Rights to choice, justice and democracy

Ms Milner feels strongly about freedom of choice for the residents of Southampton, and their rights to democracy and justice. After what she described as the two most nerve-wracking days of her life, she was greeted by various representatives of the press outside the Courts of Justice in the Strand in Central London. She thanked various parties, including her legal team, the Judge and her supporters, and said: “I have done my best for the people of Southampton, justice and democracy. We will have to wait and see what the judge decides. Until then it is a case of being patient”.

The Judicial Review was also attended by anti-fluoridation campaigners from Southampton and beyond. Their views on fluoridation were clear from the badges they were wearing, and from their banners, which they waved whilst outside the courts.

The outcome of this case is eagerly awaited. Not least, we have been given to understand, by those health authorities who have intended to follow suit and introduce fluoridation to their own areas (possibly driven by the cash incentives). Perhaps though, if the SHAs are indeed removed by the new Government, this unhappy situation in the UK will be removed also!

See also the House of Commons note on Fluoridation Legislation, and the 2008 push for fluoridation.

Those interested may also like to look at the Explanatory Memo to the Water Fluoridation (Consultation) (ENGLAND) Regulations 2005

Recent news item: US Govt's lower fluoride levels will still expose children to risk

See Clean Drinking Water campaign