Ryan v Attorney General

CourtSupreme Court
Judgment Date31 July 1965
Docket Number(1962. No. 913 P.)
Date31 July 1965
Ryan v. The Attorney General.
(1962. No. 913 P.)

Supreme Court.

Constitution of Ireland - Statute - Validity - Provision for fluoridation of water supplied to public - Whether a violation of personal rights of citizens - Constitution of Ireland, 1937, Art. 40, 3; Arts. 41, 42 - Health (Fluoridation of Water Supplies) Act, 1960 (No. 46 of 1960), s. 2, sub-ss. 1, 2 and 3;ss. 3, 4 - Fluoridation of Water Supplies (Dublin) Regulations, 1962 (S.I.,1962, No. 75), Arts. 3, 5, 6, 8.

The Health (Fluoridation of Water Supplies) Act, 1960, by s. 2, sub-ss. 1, 2 and 3, imposes an obligation on a health authority (as therein defined) to arrange for the fluoridation of water supplied to the public by sanitary authorities, through pipes, before a date to be fixed by the Minister for Health. The Minister is empowered to make regulations which shall "in particular provide for the specification of the amount of fluorine (which shall not exceed one part by weight of fluorine per million parts of water) which may be added to a water supply." By s. 2, sub-s. 4, of the Act, prior to making such regulations the Minister is required, inter alia, to cause to be made a survey of the incidence of dental caries in a representative sample of pupils attending full-time day schools in the functional areas of a health authority to which the regulations relate and also to have an analysis of, inter alia, the quantities of fluorine in the water supplied by sanitary authorities through pipes to the public in such functional areas. Pursuant to the Act, the Minister, in 1961, caused a survey of the incidence of dental caries among children in, inter alia, the Dublin area to be carried out by the Medical Research Council and he also caused to be made an analysis of the piped water in this area by the public analyst for the City and County of Dublin. The reports of the survey and analysis were subsequently presented to the Oireachtas. On the 5th May, 1962, the Minister, in exercise of his powers under ss. 2 and 4 of the Act, made the Fluoridation of Water Supplies (Dublin) Regulations, 1962 (S.I., 1962, No. 75), which required the Dublin Health Authority to arrange for the fluoridation, inter alia, of the piped water supply provided by the Corporation of Dublin. Article 5 of these Regulations provided that "The amount of fluorine which may be added to a water supply in accordance with these regulations shall be such that the water, after the addition of the fluorine, shall contain not more than one part of fluorine per million parts of water, and not less than eight-tenths of a part of fluorine per million parts of water."

The plaintiff, the mother of five children, who resided in the City of Dublin and whose house was connected with the public piped water supply of the Dublin Corporation, claimed that the provisions of s. 2, sub-ss. 1, 2 and 3 and ss. 3 and 4 of the Act were void on the grounds 1, that they violated her rights and those of her children under Art. 40, 3, of the Constitution; 2, that they were a violation of the authority of the family under Art. 41 and a violation of the family's right to physical education of the children under Art. 42 of the Constitution.

Held by the High Court (Kenny J.) 1, that legislation dealing with the contents of food or drink does not in any way affect the authority of the family and the Act of 1960 is not an interference with the rights guaranteed to the family by Art. 41 of the Constitution;

2, That the word, "education," in Art. 42, 1, of the Constitution is not used in its former wide sense which included "rearing and nurturing." The education referred to in Art. 42, 1, having regard to the words of section 2 of the said Article ("Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State"), must be of a scholastic nature. Therefore, the fluoridation of the public water supply (even if it be harmful) does not interfere with or violate the rights given to the family and to the parents by Art. 42 of the Constitution;

3, That the High Court has jurisdiction to consider whether an Act of the Oireachtas respects and, as far as practicable, defends and vindicates the personal rights of the citizen and to declare the legislation unconstitutional if it does not do so;

4, That the general guarantee of personal rights in section 3 (1) of Art. 40 extends to rights not specified in Art. 40. One of the personal rights of the citizen protected by the general guarantee is the right to bodily integrity; the fluoridation of the public water supply, even if it be dangerous, is not a violation of the plaintiff's right to bodily integrity;

5, That there is no contractual right to a piped water supply. PerKenny J.:—"The plaintiff has no legal right to a supply of piped water and the Act of 1960 does not impose any obligation on her or on the members of her family to drink or use the water coming through the piped water supply. . . . the plaintiff probably has a right of access to a supply of water, but this does not give her a right to a supply of water which has not been fluoridated through the piped water supply. . . . I am satisfied that the plaintiff . . . can, by the expenditure of a few pounds, remove all or almost all the fluoride ions from the water coming through the piped water supply."

6, That from the evidence adduced the Court was satisfied that the fluoridation of the public water supply at the concentration of 1 p.p.m. would not, in this temperate climate, be dangerous to anybody nor was there a reasonable possibility that it might involve an element of danger or risk to life or health of the citizens of this country.

Accordingly, the plaintiff's action was dismissed.

On appeal by the plaintiff to the Supreme Court it was held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Kingsmill Moore, Haugh and Walsh JJ.), dismissing the appeal, 1, that the question, whether or not a citizen's constitutional rights have been infringed by the kind of water provided by the public water supply, should not be controlled by technical limitations arising from the law of contract;

2, That, on the question whether the plaintiff's action failed because she could, by a simple and inexpensive device fitted to the tap, remove from the water the fluoride ions (which ground was not relied upon by the Attorney General), a fuller examination than had been given to the matter in the evidence would be required by the Court before accepting it as affording, by itself, a satisfactory answer to the plaintiff's claim;

3, That the "personal rights" mentioned in section 3, 1, of Art. 40 of the Constitution are not exhausted by the enumeration of "life, person, good name, and property rights" in section 3, 2, as is shown by the use of the words "in particular" in section 3, 2, nor by the more detached treatment of specific rights in the subsequent sections of Art. 40. The Court considered that it was unnecessary, in this case, to attempt to list the rights which properly fall within the category of "personal rights";

4, That it was unnecessary for the Court to define "bodily integrity" or the "right to the integrity of the person";

5, That the findings of the trial Judge that the fluoridation of the public water supplies in this country at a concentration of 1 p.p.m. would not cause any damage or injury to health and that there was no risk or prospect that it would do so were correct and could not be challenged;

6, That the changes effected by drinking the public water containing fluoride ions at a concentration of 1 p.p.m., do not amount to a violation of the"bodily integrity" of the plaintiff or her children;

7, That it is not accepted that the proposed fluoridation of the water supply is, or could be described as, mass medication and it is a misuse of words to refer to this process as mass medication or mass administration of drugs;

8, That there is nothing in the Act which could be said to be a violation of the guarantee on the part of the State to protect the family in its constitution and authority, contained in Art. 41, 1, 2, of the Constitution;

9, That the provision of suitable food and drink for children is nurture, not education. Accordingly no question arose concerning a violation of the provisions of ss. 1 and 2 of Art. 42 of the Constitution. PerÓ Dálaigh ó dálaigh C.J.:—"To give him" [a child] "water of a nature calculated to minimise the danger of dental caries is in no way to educate him, physically or otherwise, for it does not develop his resources";

10, That the word "fluoridation" in the Act of 1960 is to be given its technical and scientific meaning, except in so far as this is clearly and expressly modified or extended by the wording of the definition, and the extension by the words "fluorine in any form" must be read as "the fluoride ion as contained in or produced by any form of chemical substance."

11, That although the provisions of s. 2, sub-s. 3 (a), of the Act of 1960 clearly state that the Minister for Health may make regulations which authorise a maximum addition of one part by weight of fluorine per million parts of water to be made to an existing water supply, and do not advert to the natural fluorine content of that supply before such addition so that a concentration in excess of 1 p.p.m. F. was a possible result, nevertheless the Court would not offer an opinion upon the matter as the plaintiff had not adduced evidence to support an examination of it.

12, That the Court had no concern with the legislative policy of the Oireachtas. The Court's function was to examine the statute in which that policy is embodied so as to discover whether its provisions contravene the provisions of the Constitution.

Witness Action.

This was an action brought for the purpose of challenging the constitutional validity of the Health (Fluoridation of...

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