Daily Echo - Fluoride: Was the decision legal?

Fluoride: Was the decision legal?
By Jon Reeve
HEALTH bosses were today due to explain why they were right to give the green light to controversial plans to add fluoride to Hampshire tap water.
Barristers for South Central Strategic Health Authority and the Government were to be given their chance to outline the reasons why they believe a legal challenge to the scheme is wrong in the second day of a landmark High Court hearing.
Almost two years after the SHA's board unanimously approved fluoridation for parts of Southampton and surrounding areas, and on the day the Health Secretary hammered another nail into the body's coffin, lawyers yesterday began debating whether they were right to do so.
In a nondescript courtroom nestled in a corner of London's otherwise vast and imposing Royal Courts of Justice, the future of the disputed plan affecting nearly 200,000 people became the responsibility of just one man.
Mr Justice Holman, who revealed to the court he grew up in the New Forest, will decide if the SHA should legally have listened to the will of the people. A public consultation held by the authority prompted more than 10,000 responses.
Of those from people in the affected area, covering two thirds of Southampton and parts of Eastleigh, Totton, Netley and Rownhams, 72 per cent said they did not want fluoride in their water. In a separate phone poll of 2,000 residents, 38 per cent of those quizzed expressed opposition, compared to 32 per cent who backed the scheme, which health chiefs argued was needed to improve city childrens' teeth.
But after being told they only had to pay regard to public opinion, and had to consider the "cogency" of arguments raised (a legal term meaning are they good points and are they based on sound scientific evidence?), they gave the scheme a resounding thumbs up.
Yesterday, on day one of the judicial review, barrister David Wolfe, who is representing the Southampton mum who has brought the legal challenge, outlined the repeated assurance from ministers that the final say on fluoridation would be the people's. He quoted then health minister Melanie Johnson, speaking in October 2003, who told the House of Commons: "There is a difficulty in weighing up the responses, but whatever the case, local opinion must be in favour of the proposal.
"Local opinion must support the measure overall. Whatever mechanism is used, a clear majority of people should be in favour."
Mr Wolfe, who is trying to convince the judge the Government policy was that residents' views should be paramount in decision making, told the court of similar statements by Lord Warner, the Government's health representative in the House of Lords, made in both 2003 and 2005.
He said: "They are very clear, unequivocal and formal statements, made in possibly the most formal situations imaginable."
Despite those assurances, the court heard no such rule was included in the legislation that was passed through Parliament, changing the rules to give health authorities the power to force water companies to fluoridate supplies. Instead it said SHAs could only go ahead with a scheme to add fluoride if the authority was "satisfied that the
health arguments in favour of proceeding with the proposal outweigh all arguments against proceeding".
Mr Wolfe said: "To form that view, the SHA must consider the extent of support for the proposal and the cogency of the arguments advanced." And in February 2008, Chief Dental Officer, Barry Cockcroft, went further in issuing guidance to health bosses telling them they were not conducting a public vote. *
He wrote: "Given that the consultation regulations require Strategic Health Authorities to take account of the cogency of the representations and their relevance to the 'health arguments', a SHA cannot base its decision solely on a simple count of the representations for or against the proposal." But whether of not SHA board members did cogently evaluate the evidence forms the second string of the legal challenge.
Mr Wolfe said there was "no way" they could have, because they were not properly informed of vast swathes of opposition arguments, including detailed questioning of the benefits, cost efficiency of the scheme and potential environmental impacts, which were raised by campaigners and local politicians.
He said: "The cogency of the arguments needed to be before the board members and they needed to evaluate them.
"Important arguments were raised by consultees, which were either not conveyed to the board at all or in the most pithy terms, without the supporting material to allow them to evaluate the cogency of the arguments.
"These were not nit-picky points - they questioned the headline reasons given for fluoridation. We say the cogency exercise has not been completed."
The remainder of the legal arguments were due to be completed today but the judge is expected to defer his decision.


The battlng mum who took on the mighty NHS
SHE is the private mum of three who has taken on the might of the NHS.
As the judicial review into South Central Strategic Health Authority's decision to fluoridate Hampshire tap water finally got underway, more than 18 months after the legal process first began, one woman had more reason than others to feel pleased with herself.
Judge Mr Justice Holman made a point of making sure which of the people crammed into his courtroom was Gerri Milner, the Southampton resident behind the legal challenge.
And he gave his heartfelt thanks to her for taking the time to attend the two-day hearing, before asking if she would move seats so he could see her properly past the assembled lawyers arguing her case.
Speaking at the end of the first day of the case, Ms Milner said she had felt compelled to act because of the way, in her eyes, fluoridation had been "bulldozed" through.
She told the Daily Echo: "When I saw the weight of anger about it, I thought: 'I've got to do something about it'.
"I'm the chairman of my local tenants' and residents' association, and I'm not the sort that would go out with placards in the rain, but I am the sort that will go and do what I can within the legal system. "I really believe I'm doing the right thing. "I think the health authority has acted a bit naively really. "I don't think they have taken into consideration all the arguments against, some of which I think are very valid."