UKCAF website

Councils handed the 'poisoned chalice' of water fluoridation

Doug Cross 24th August 2010
(Updated 11th February 2100)

If ever a British government handed a more double-edged sword of 'power' to a Council than the new responsibility of deciding whether or not to adopt water fluoridation in the area for which they have responsibility, I have yet to hear of it!

It was reported today that this is precisely what will happen once the new Coalition Government abolishes the universally disliked autocratic Strategic Health Authorities (SHAs). Under the terms of the Water Act 2003 these were given a power they had craved for years - the authority to order (although it was referred to as 'request' in the delicately worded legislation) water companies to fluoridate their product.

Previously they could only 'request', but the law said that the water companies 'may' comply, and the resulting bloody nose for one regional Health Authority rankled for years, after a Judge threw the Health Authority's case out of Court on the first day of the hearing! 'May,' he said, 'does not mean MUST!' and the company was perfectly entitled to refuse if their customers don't want it. And that's why there has been no new fluoridation project in England for the past seven years (longer, actually - and that was down to us at UKCAF as well!)

But now, following the triumphant public rejection of the proposal to fluoridate the city's water supply through the work of the Southampton Resistance, and then the Judicial Review of what 'consult with the public' actually means, the SHAs and PCTs will be abolished, and replaced by an entirely new body - Public Health England (not Scotland, Wales or Northern Ireland, notice) which will take over responsibility for 'contracting'. Our obstreperous Councils will in future have the grand responsibility of 'consulting' the public.

So in the government's grand 'Localism' plan, the entire administration of public health will be taken over by that excellent example of local government - the Department of Health in London. And still there's no indication of what notice PHE will take of the results of local consultation.

But Councils, be warned! With such awsome power comes equally awsome responsibility, and where fluoridation is concerned, that sword of power could just turn out to have been pre-owned by a certain gentleman named Damocles!

For what this fumbling government is attempting to foist on your unsuspecting shoulders is a veritable cauldron of woes, one that makes Pandoras' vase (she had a vase (pithos), not a box, dammit!) look like a veritable Christmas present of inestimable beauty and value!

The simple fact is that fluoridated water is a medicinal product. I know that the mindless Regulatory Qango, the Medicines and Healthcare Products Regualtory Agency - MHRA to us forgetful souls who have trouble remembering such grandiose titles - disagrees. But then as a well-known lady of negotiable virtue famously said in a celebrated English Court, it would say that wouldn't it?

Take the word of Lord Jauncy, of the European Court of Justice, or even of my humble self that it really is so, and that it is, moreover, an unlicensed medicine. Take note also that, as a Council, you have no authority to prescribe medical treatment - practicing medicine without a licence is naughty, and attracts adverse lawyers. If PHE's actions are unlawful, then you may also become complicit, merely by going along with the central government's fluoridation policy and consulting the public.

And from that simple basic fact, a whole host of legal furies could be conjured up, to track you down and attempt to steal your personal assets until you are destitute, both corporately and personally.

You see, fluoridation causes measurable medical damage to around half of all children exposed to it. One in eight will be so severely disfigured that they will be looking for someone to cover the £30,000-plus costs of otherwise completely unneccessary dental treatment for numerous decades to come.

And guess where they will be looking? That's right - at any Council and its Members who decided to collaborate in imposing this non-consensual medication on them in the first place. You are unquestionably right in the frame, and will see the results in around two to three years after you take that fateful decision to go ahead and do it. After that, it'll be downhill all the way to - well, around the year 2100 at least.

If you, as a Councillor, are so besotted with the idea of this shiny new power that you are willing to take the risks of potential personal liability that come attached to it, then I suggest that you read through the following list of problems that will be seething quietly in your cramped and impecunious Council Offices once this munificent government confers on you the cherished award of 'Patsy of the Year'.

You may also like to show it to your family - after all, it is surely only fair they should know where all of your hard-earned savings might one day end up, and why?

Licensing of medicinal products

• Fluoridated water is a medicinal product, as it is used with the intent to treat a medical condition, dental caries. Arguments over whether or not it works are irrelevant – the intent to medicate is sufficient (European Court of Justice, Ter Voort case).
• ALL medicinal products require a Product Licence issued by the Licensing Authority, the Medicines and Healthcare Products Regulatory Agency (MHRA), before they can be used (sections 6,7 and 8, Medicines Act 1968, as amended). Making a medicinal claim for any product that has no medicinal licence is an offence.
• Medicinal law takes precedence over food law in the case of drinks (including water) that appear to fall under both arms of the legislation. (ECJ re Warenvertreibs and Orthica, 2005)
• National Regulators, including the MHRA, have no authority to issue an 'opinion' on whether such a drink is or is not a medicinal product - the ruling is absolute and MUST bve enforced in all Member States.
• Despite this ruling, the MHRA has failed to award fluoridated water such a licence. Its supply to the public is therefore unlawful under both English law and the over-riding framework of European Community law, regardless of its nomination for fluoridation in the Water Act 2003.
• An application for a medicinal licence must be accompanied by a dossier providing details of the efficacy and safety in use of the product, and of the quality control standards under which it is manufactured and any formulations will be produced.
• No such application has been made by the Department of Health or the Medicines Regulator, the MHRA (Correspondence from CEO of the MHRA - June 2008), nor has any relevant authority performed the scrutiny of a mandatory submission of a dossier on the product's safety, efficacy and quality control that is required for licensing fluorosilicic acid.

Preparation of medicinal product formulations

• The medicinal product used to fluoridated water supplies in England is fluorosilicic acid, and fluoridated water is the formulated presentation of the product distributed for public use.
• All formulations of medicinal products must be prepared in premises having a pharmaceutical licence, and the preparation must be carried out by, or under the supervision of, a 'qualified person' - a pharmacist.
• Fluoridated water is not prepared at water treatment works under these conditions. Water companies are not registered and licensed as pharmaceutical operations. The manufacture of the product, and its supply to the public, therefore is not compliant with medicinal legislation.
• No medicinal product may be supplied to the public unless it is in a container.

Fluoridated water causes distinct and predictable medical damage to children

• Fluoride-affected tooth enamel is NOT normal enamel, and has inferior properties.
• Only children exposed to fluoridated water during their first few years reveal externally visible evidence of chronic fluoride poisoning. This is known as dental fluorosis.
• Only about half of all children show this overt evidence of chronic fluoride poisoning, but all children and adults in such areas are at risk of being subjected to fluoride overload.
• In about one child in eight living at the critical period in a fluoridated water area, the damage caused by dental fluorosis is so severe that they will need remedial cosmetic dentistry later in their lifetime. This disfigurement is predictable and inevitable, and therefore liable to generate civil actions for medical damages.
• Fluorosilicate-induced dental fluorosis leads to physical damage to the teeth ('dental fluorosis') and may also cause psychological damage.
• There are many research papers confirming that fluoride is responsible for serious, and even fatal, conditions. Especially vulnerable are babies, the elderly, people with poor kidney function, and some others. Some people are highly sensitive to fluoride, even when bathing in fluoridated water.

Fluoridated water is not a food, a supplement or an additive

• There is no biological requirement for fluoride – there is no condition of 'fluoride deficiency', nor any 'optimum concentration' for fluoride in water.
• It is a cumulative metabolic poison. Fluoride cannot be regarded as a dietary 'supplement' – increasing its ingestion merely increases the risk of poisoning.
• All fluoride is poisonous, and there is no discernible threshold, below which it does not cause measurable human damage (SCHER, 2010)
• No medicinal claims (including health claims) may be made for any food, food supplement or food additive. Claiming that fluoridated water is a food and prevents tooth decay is an offence.
• Fluorosilicates are not authorised supplementary sources of the 'mineral' fluoride.
• Food supplements may only be supplied in packaged dose form.
• Fluorosilicates are not authorised sources of the 'mineral', fluoride, as specified in the food additive regulations.
• Therefore their addition to the drinking water (a food) a a source of the 'mineral' fluoride is in violation of food law.
• Drinks that are marketed with medicinal claims MUST be regulated solely as medicines. The Medicines Regulator, the MHRA, has no authority to express an 'opinion' on this issue (European Court of Justice, 2005)
• Fluoridated water is converted from a food to a medicinal product the instant that it is fluoridated at the water treatment works where it is produced.
• Medicinal waters are specifically excluded from regulation under the food and drinking water regulations and MUST be regulated as medicines. (ECJ re Warenvetriebs and Orthica, 2005, applies)
• All medicines must be supplied in a fully labelled container. As a medicinal water, fluoridated water cannot be supplied to the general public through the public water supply.
• As a 'medicinal water', EC and UK water quality criteria and standards DO NOT APPLY. There is therefore no legal protection under the water regulations for any person who might be damaged as a result of being supplied with fluoridated water that is defective in some unrelated fashion. (Think - Camelford and aluminium sulphate).

Poisons

• Fluoridation chemicals are, contain, or break down into prohibited poisons as specified under the Poisons Act 1972 and the Poisons List Order 1983. Poisons may only be supplied to the public in accordance with the regulations included in these.
• They may not be supplied to the public by unqualifed persons, nor from premises that are not licensed for this purpose. Water treatment works are not licensed pharmacies.
• All poisons must only be supplied in a container specially designed for such products.
• Some poisons have medicinal use, and may be licensed for that purpose. There is no relavent medical exemption in force for the use of fluorosilicates and related poisons as medicinal substances.
• Administering any registered poison, or substance containing such a poison, to any individual is an offence (s 23 of the Offences Against the Person Act 1861)
• It also constitutes the tort of battery.

Heathcare sector Liability

• Prescribing an unlicensed ('off-label') medicinal product is only permissible under strict medical control and when other interventions are not feasible or available.
• Councils are not licensed to prescribe any form of medicinal product, whether or not it has a relevant marketing authorization, and could be liable to charges of illegally practicing medicine without a licence.
• Prescribing an off-label product is extremely strictly regulated, even within the medical profession. They can only be supplied by qualified prescribing individuals, and their use is attended by very substantial personal liability.
• Qualified persons who prescribe treatment with unlicensed medicinal substances take on full personal responsibility for the welfare of their patients, who must first be appraised of ALL potential outcomes and give written consent.
• The prescribing specialist remains personally liable for any damage caused to the patient - in this case, the general public - and must keep fully detailed and individual Case Records.
• The administration of an 'off-label' medicinal product must cease immediately its use is no longer justifed.
• The 'need' for fluoridation is highly questionable, and attempting to justify to a Court the 'need' to continue to administer it to, for example, any elderly and toothless person in a large fluoridated population could be extremely hazardous.

Consultation

• The use of fluorosilicates to treat the public for dental caries is a medicinal intervention, and as such is subject to medicinal law.
• Since the practice is not regulated in accordance with medicinal law, it is unlawful.
• the provisions for water fluoridation
• Councils cannot hold 'public consultations' on a prohibited act. If an action is unlawful, then no valid permission for its commission or implementation can be granted.
• Therefore, councils have no authority to consult the public over whether or not they may prescribe, administer or supply the product to the public.
• There can be no consultation over whether the State may commit, or order a private individual or company to commit, a criminal assault (battery) upon the public.
• There is no indemnity for a criminal act. Individuals committing such acts, or public authorities authorising such acts, could be held to be personally and corporately liable for the consequences.

Ethical constraints

• No individual has the right to impose medication upon another, unless there is a clear, immediate and life-threatening risk to the well-being of the public.
• Medical interventions may only be carried out with the fully informed consent of the individual. General consents cannot be deemed to exist - if a single person objects then public water fluoridation is in violation of that indiviual's right to refuse such treatment.
• There is no over-riding public interest involved - bad teeth are neither infectious nor a threat to the life or safety of others.
• Failure to secure consent for a medical intervention constitutes assault (the tort of battery)
• Administering a prohibited substance to any individual, regardless of whether they consent or not, violates the Patients' Charter and Human Rights legislation (Article 3 of the HR Convention and the Act applies for any action liable to cause severe damage or death).
• Negligently providing biased or dangerously wrong information about a proposed medical intervention by a public official is misuse of public office, and is actionable.
• Deliberately providing misleading or unbalanced information on a proposed medical intervention by a health professional, in order to sabotage public understanding of the risks entailed during a 'consultation' process, may be regarded as medical malpractice by the Courts

Councils' liability.

• The liability of Councils in many of these areas is obscure, but may be appreciable – for example, if any child is damaged by drinking fluoridated water in premises controlled or managed by Councils.
• Councils could be at greater direct risk if they authorise general water supply fluoridation under the proposed new powers.
• We urge our Member Councils to take full legal advice before engaging any any debate or negotiation over fluoridation that could result in the product being administered within the area for which they have responsibility, on the pretext of protecting public health and safety.
• On the subject of consultation, Councils should be aware of the potential issue of conspiracy to commit a violation of the medical legislation, if they agree or nod through any attempt to impose fluoridation on the community. Conspiracy to commit an un lawful act may be held to have occurred if an executive agency, such as a Council, has been aware of legal obstacles to fluoridation, and of the potential dangers that the practice poses for the public, but failed to take action to oppose it, or submit it to the appropriate regulator, or any other action that might have prevented the commissioning of the offence. It is only necessary to show that the Council had knowledge that an unlawful act would result but failed to take action – it is not necessary to establish that the act actually took place.
• In the civil context, failing to take such action may be held to constitute misuse of public office or negligence.

And finally:-

If you really do want to understand what's being offered to you and your colleagues at County Hall, Town Hall or wherever you all hang out, let me suggest a little reading on some of the anomalies that may beset you shortly. Try this review of the UK and European legislation, and this commentary on what the European Court of Justice had to say about the use - or rather the prohibition on the use - of products such as fluoridated water in the food manufacturing industry.

Oh yes - do make sure that any local food producer in your area sees this last one too - you may find that you have some pretty irate businessnen and women visiting your offices in some urgency for an explanation of why you are about to support an action that could put them out of business!