Director-General of Health v New Health New Zealand Incorporated - [2026] NZCA 279

Administrative law — judicial review — right to refuse to undergo medical treatment — whether actionable procedural obligation on public decision-maker to consider Bill of Rights issues when making decisions — mandatory relevant consideration — New Zealand Bill of Rights Act 1990, ss 5 and 11 — Health Act 1956, pt 5A

In 2022 the Director-General of Health acting under pt 5A of the Health Act 1956 issued letters to 14 local authorities directing them to fluoridate their drinking water supplies. Although the Director-General complied with and detailed his consideration of the mandatory criteria under the empowering provision of the Health Act, neither the Director-General’s letters nor the appendices annexed to them made any express reference to the Bill of Rights. The fluoridation directions, however engaged the right to refuse medical treatment under s 11 of the Bill of Rights.

In June 2023, New Health New Zealand Inc issued judicial review proceedings against the Director-General and the Attorney-General challenging the directions. The essence of New Health’s error of law argument was that the Bill of Rights created an actionable process obligation on all actors caught by s 3 to undertake a Bill of Rights assessment whenever protected rights were engaged, meaning the Director-General erred in failing to turn his mind to the right to refuse medical treatment and justify his decision under s 5 of the Bill of Rights.

Given its novelty, the error of law ground was isolated in the High Court and dealt with as the following question of law: “Is … there an obligation in a procedural sense on those to whom the [Bill of Rights] applies to consider the application of the [Bill of Rights] if their exercise of power might engage a protected right?”.

In November 2023, Radich J answered in the affirmative. The Judge confirmed the existence of such an actionable process obligation which he held was owed by all public decision-makers and which if breached would render their decision unlawful independently of whether the decision itself was rights-consistent. Although the Health Act did not explicitly mandate consideration of the Bill of Rights, a protected right was engaged, meaning the Director-General was required to turn his mind to whether the directions were in each case a reasonable limit on the right to refuse medical treatment and be satisfied that they were. Failure to treat the Bill of Rights as a mandatory relevant consideration rendered the Director-General’s decision to issue the directions unlawful and that was so regardless of whether it was in fact compliant with the Bill of Rights.

In a relief judgment issued in February 2024, the Judge ordered the Director-General to reconsider the decision while keeping the directions in place. In December 2024, the Director-General concluded that fluoridation of water was a substantively justified limit on the s 11 right and reconfirmed the directions.

Despite the appeal being moot with no practical effect on the dispute, the Crown appealed the November 2023 High Court decision given its legal significance. A Full Court heard the appeal.

Did the High Court err in ruling that the Director-General’s decision to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and consider whether that restriction was justified under s 5 of the New Zealand Bill of Rights Act 1990? Held: Yes

French P, Courtney, Katz and Thomas JJ: Having reviewed New Zealand Supreme Court authorities — and United Kingdom authorities affirmed by the Supreme Court — the better view was that the actionable process obligation adopted by the High Court was not part of New Zealand’s current law. Absent an express provision in the empowering legislation requiring a s 3 decision-maker to consider the Bill of Rights, the Bill of Rights was not generally a mandatory consideration. Substantive compliance with the Bill of Rights was the touchstone of illegality, rather than the process by which the administrative decision had been reached.

Although adopting the novel actionable process duty might heighten awareness of the Bill of Rights, any benefits that might result from recognising such a stand-alone duty were limited and far outweighed by well-founded concerns of practicality, undue formalism, doctrinal confusion and uncertainty.

The High Court therefore erred in finding that through a failure to expressly undertake a Bill of Rights assessment prior to issuing the directions under s 116E of the Health Act, the Director-General acted unlawfully.

Mallon J (dissenting): Mallon J agreed with the High Court that an actionable process obligation arose and would have dismissed the appeal. In her view, unless the empowering statute under which the discretionary public power was exercised clearly excluded it, the Bill of Rights gave rise to both a stand-alone procedural requirement and a substantive constraint on a public decision-maker.

The appeal against the High Court decision of 10 November 2023 is allowed.

The ruling that the first appellant’s decision to issue the water fluoridation directions was unlawful because he failed to address the restriction on the protected right to refuse medical treatment and to consider whether that restriction was justified under s 5 of the New Zealand Bill of Rights Act 1990 is set aside.

We make no award of costs in relation to the appeal.

The costs award made by the High Court in favour of the respondent is set aside, and the costs paid to the respondent refunded.