The order of the former Director-General of Health, Sir Ashley Bloomfield, to add fluoride to more than a dozen drinking water supplies across the country has been ruled unlawful by the High Court. 

Friday’s decision ruled the orders contained a procedural error where Bloomfield failed to give specific consideration to the Bill of Right Act when making the decision in July last year. In his judgment, Justice Radich wrote that, "There is, in my view, no getting away from the fact that the Director-General did not turn his mind to Bill of Rights Act considerations when making the decision." 

Bloomfield made the order under a new law that allowed the Director-General of Health to make decisions on water fluoridation rather than local authorities, which previously held the right to do so. 

Bloomfield then directed 14 councils to fluoridate some or all their drinking water supplies - giving deadlines between 2023 and 2026 for them to begin or face a heavy fine.  

The New Plymouth District Council began to put fluoride in its drinking water and several other councils had planned to do so.  

Bloomfield had said fluoridation was proven to be a "safe, affordable and effective method of preventing tooth decay". 

"Fluoridated water is safe for everyone to drink – including babies and the elderly – and fluoride exists naturally in air, soil, freshwater, seawater, plants and in food," he said.  

"We estimate that adding fluoride to the water supply in these 14 local authority areas will increase the number of New Zealanders receiving fluoridated water from 51 per cent to around 60 per cent." The High Court's ruling had emerged from a judicial review by New Health New Zealand, a lobby group based in Christchurch. 

Its lawyers argued that Bloomfield had not considered the Bill of Rights in his decisions. The question ended up being taken out of the wider review and considered on its own by the High Court. The Bill of Rights states that anybody can refuse medical treatment, although the Supreme Court had previously ruled that fluoridating was a justifiable limit on that right. 

Lawyers representing Bloomfield argued nothing had changed since that decision and requiring such weighty considerations for discretionary decisions would “unnecessarily complicate and encumber administrative decision-making at all levels of government”, the decision said. 

In this case, the judgment stated that while the Court must make the ultimate decision under the Bill of Rights Act, an essential component of New Zealand’s Bill of Rights Act obligations is for decision-makers to use rights-focused lenses when making decisions.  

The Court found that the Director-General needed to turn his mind to the Bill of Rights Act considerations based on local conditions in each relevant area and that there was no evidence that that had happened.