Regulations on how local authorities should go about deciding on a water fluoridation scheme

The Water Fluoridation (Proposals and Consultation) (England) Regulations 2013 lay down a process that local authorities with fluoridation responsibilities are required to follow if they propose to introduce a new scheme to serve their area.

The local authorities with such responsibilities are ‘upper tier’ or unitary authorities, including metropolitan districts councils, county councils, unitary authorities and London boroughs.

Stage 1: Need to explore feasibility and to satisfy Secretary of State that the proposed scheme would be ‘operable and efficient’

If, after having reviewed the state of oral health in its area, a local authority (Council A in this example) wishes to pursue the possibility of introducing a fluoridation scheme to help reduce the prevalence and severity of tooth decay, it must first consult the Secretary of State for Health and the relevant water suppliers as to whether the proposed scheme would be ‘operable and efficient’.

As part of this process, Council A will need to:

  • work with the water supplier(s) in carrying out a feasibility study;

  • liaise with Public Health England, an agency of the Department of Health responsible for assisting and advising the Secretary of State on fluoridation matters.

Most of the existing fluoridation schemes in England serve the populations of more than one local authority.  It is probable that future fluoridation schemes will do likewise.  The extent to which water from the supply that Council A is proposing to fluoridate flows through neighbouring authorities will be demonstrated through the feasibility study.

Stage 2: Need to notify other local authorities whose populations are affected

If the Secretary of State is satisfied the fluoridation scheme proposed by Council A would be ‘operable and efficient’, and if Council A then wishes to take the matter further, it must notify any other local authorities whose populations would be affected.

An affected population may comprise hundreds of thousands of people, especially if the proposal would result in the entire resident population of one or more local authorities being supplied with fluoridated water.

Alternatively, an affected population may comprise just a few hundred people if, for example, a water distribution system primarily serves one local authority but happens to stray across a boundary to supply a very small area in a neighbouring authority.  However small the number of individuals affected, the local authority in which they reside must be notified.

There is nothing to stop Council A from having approached other local authorities earlier in the process when it was initially exploring the idea of fluoridation.  It is even possible that more than one authority may be formally putting forward the proposal.

But whatever degree of contact and discussion there may already have been, the regulations lay down a statutory requirement for the ‘proposer’ authority, or authorities, to notify other affected authorities in writing before any further steps can to taken – Regulation 3(1-2).

Information that the proposer authority must give to the other authorities affected

Let us assume in this case that three other councils (B, C and D) are affected by Council A’s proposal.  Council A must now formally notify B, C and D.  In so doing, Council is required to – Regulation 3(3):

  • make available a copy of its fluoridation proposal;

  • give an assessment of the number of indiiduals affected by the proposal who live in each authority’s area;

  • give its reasons for making the fluoridation proposal;

  • make available the opinion of the Secretary of State and each water company involved as to whether the proposal would, when implemented, be ‘operable and efficient’.

Three months for the other councils to respond

Councils B, C and D have three months in which to tell Council A whether or not they are in favour of taking further steps on the proposal (which, in practice, means going out to public consultation) – Regulation 3(5).

During the three months, Council A is required to make available “such other information as the affected local authorities may reasonably request in relation to the proposal” – Regulation 3(4).

Authorities that do not respond are taken to have withdrawn from the decision-making

If, when the three months have elapsed, any of the affected local authorities have not responded, they are taken to have withdrawn from the decision as to whether further steps (public consultation) should now take place – Regulation 3(6).

Stage 3:  Deciding whether to drop a proposal before it even goes to public consultation, or whether to proceed to a consultation

Let us assume that Councils B, C and D have all responded to Council A’s proposal.  The regulations lay down a procedure for deciding whether or not the proposal goes no further or whether it goes to public consultation Regulation 4(1-4).

Each local authority is allocated a number of points that reflect the number of individuals living in its area who would be affected by the proposal.  In this case, let us say that:

  • Council A has 500,000 individuals affected

  • Council B has 350,000 individuals affected

  • Council C has 125,000 individuals affected

  • Council D has 25,000 individuals affected

Need for councils representing at least 67% of the affected population to support going out to consultation

In the above example, there are 1 million people affected.  The regulations say that for the proposal to proceed any further, the total points in favour from Councils A, B, C and D combined must equate to 67% or more of the individuals affected across all four authorities.

If Councils A, B and C are in favour of proceeding to a public consultation (975,000 points) and Council D is against (25,000 points), the percentage in favour equates to 97.5% (975,000 divided by 1 million).  The proposal can then go forward to a public consultation.

On the other hand, if Councils A and D are in favour (525,000 points) and Councils B and C are against (475,000 points), the percentage in favour equates to 52.5%.  This is below the minimum 67% threshold needed and means that the fluoridation proposal can go no further.

Stage 4: Going out to public consultation

Let us assume that there is 67% or more support for further steps to be taken.  What happens next?  Where two or more local authorities are involved, they are expected to establish a joint committee to discharge their fluoridation functions and oversee the process from this point.  Together, through the joint committee, they then plan and carry out a public consultation.

Nature of the joint committee

Legislation specifies that the joint committee discharging the fluoridation functions of the affected local authorities may be:

  • a new committee established expressly for this purpose;

  • an existing joint committee of the authorities concerned;

  • a joint sub-committee of the authorities’ existing Health and Wellbeing Boards.

It is up to the authorities involved to decide between them on which joint committee arrangement best suits their needs.

Publicising the proposals

The joint committee is required – Regulation 5(2) – to publish the proposal, and the steps the local authorities concerned propose to take in relation to that proposal, in:

  • one or more newspapers circulating within the areas affected;

  • such other media accessible within those areas as they consider appropriate for bringing the proposal to the attention of individuals affected and bodies with an interest.

Other media

The regulations do not specify what ‘other media’ might be.  Past experience of fluoridation consultations suggests that possible techniques could include:

  • an opinion survey;

  • direct mail to individuals’ houses;

  • news releases issued at regular intervals during the consultation;

  • creation of a dedicated website or dedicated page within an established website;

  • focus groups with sections of the community that stand to benefit most from the proposal (young families, for example);

  • supplying speakers to explain the proposals at the meetings of relevant local organisations;

  • public meetings.

Bodies with an interest

The regulations themselves do not specify what ‘bodies with an interest’ might be.  But they could include, for example, Local Dental Committees, Local Medical Committees, NHS Clinical Commissioning Groups, NHS Trusts, NHS patient groups, GP practices, dental practices, schools, colleges, voluntary and community groups (especially those concerned with the health and welfare of children), major employers, trade union branches, and pro and anti-fluoridation groups.

Information to be included in the consultation materials

The regulations – Regulation 5(3) –  require that the following details should be included in whatever information is published for the purposes of the consultation:

  • the nature of the steps that the local authorities concerned are proposing to take;

  • the reasons for the fluoridation proposal;

  • the area affected by the proposal;

  • the period within which representations by individuals and organisations can be made (which must be at least three months from the date on which the details are first published).

The regulations do not go into any more detail than this.  But as far as the reasons for the fluoridation proposal are concerned they could, for example, include the need to reduce levels of tooth decay; to reduce dental health inequalities between areas or between different social groups; and to achieve population-wide improvements in dental health as cost-effectively as possible.

Stage 5: Post-consultation

Factors that need to be taken into account

The regulations lay down a decision-making process to be followed by the joint committee after the consultation period has ended – Regulations 6 and 7.  The joint committee is required to have regard to any representations made in relation to the fluoridation proposal with a view to assessing:

  • the extent of support for the proposal;

  • the strength of any scientific evidence or ethical arguments advanced in relation to the proposal;

  • any assessment of relevant health needs in the areas affected by the fluoridation proposal that may have been published in the each of the local authorities’ joint strategic needs assessments and joint health and wellbeing strategies.

In addition, the joint committee is required to consider:

  • the capital and operating costs likely to be incurred in going ahead with the proposed fluoridation scheme;

  • any other scientific evidence in relation to the proposal, including any evidence of benefit to the health and wellbeing of individuals affected.

Procedure for arriving at a decision when there is not unanimity

If unanimity about whether to proceed with or drop the proposal cannot be reached in the joint committee, the regulations lay down a voting procedure to be followed – Regulation 7 (1-3).  In essence, it is the same procedure as for deciding whether or not to go out to consultation.

Each local authority is allocated a number of points that reflect the number of individuals living in its area who are affected by the proposal.  The regulations say that for the proposal to go ahead following public consultation, the total points in favour must equate to 67% or more of the individuals affected across all the authorities.

So in the specific case of Councils A, B, C and D, let us suppose that Councils A, C and D (650,000 points) are in favour and Council B (350,000 points) is against.  This equates to 65% in favour and 35% against.  As the votes in favour did not reach the 67% threshold, the local authorities cannot go ahead with the fluoridation scheme.

If, on the other hand, Councils A, B and D (875,000 points) were in favour and just Council C (125,000 points) was against, the balance would be 87.5% in favour and 12.5% against.  In this scenario, the 67% threshold is reached and the local authorities should then notify the Secretary of State and formally request that he implements a new fluoridation scheme on their behalf – Regulation 8.

Procedure to follow when people in only one local authority are affected by a fluoridation proposal

In the unlikely eventuality that only one local authority with public health responsibilities is affected by a fluoridation proposal, there is no need for it to notify or involve other local authorities or to set up a joint committee.  But it must nevertheless go out to public consultation (under the terms set out above) if it wishes to take the proposal forward.

After public consultation has ended, it must also follow the same process as a joint committee in assessing the responses before it makes a final decision.

What happens if there is a proposal to vary an existing fluoridation scheme

Extending or reducing the coverage of a scheme

In certain circumstances it is possible that a local authority may propose to vary an existing fluoridation scheme.  This might be, for example, if it wishes to extend the benefits of fluoridation to more people within its area or, for operational reasons resulting from changes to the water distribution system, needs to reduce the area covered by the scheme.

When a consultation on a variation proposal is needed before it can go ahead

If a variation proposal affects the boundary of an area covered by an existing fluoridation agreement, a public consultation must take place before the variation can be implemented, no matter how few people are affected by it.

If the boundary of the area is not affected, but implementing the proposal would increase or reduce the number of houses supplied with fluoridated water by a number greater than 20% of the houses already covered by the existing fluoridation scheme, a consultation must take place.

When a consultation on a variation proposal is not needed before it can go ahead

However, if the boundary of the area covered by a fluoridation agreement is not affected and the number of houses affected equates to 20% or fewer of the houses already covered by the existing fluoridation scheme, there is no need for a public consultation to take place – Regulation 15(1).  The local authority can simply request the Secretary of State (through Public Health England) to work with the water supplier to implement the variation.

Same consultation and decision-making procedures as for proposals to introduce a new fluoridation scheme

The procedures adopted in taking forward variation proposals, for conducting public consultations on those proposals and making decisions on them are the same as for introducing a new fluoridation scheme.  If more than one authority is affected, a joint committee needs to be established to oversee the consultation and make the final decision about whether or not to implement the proposed variation.

What happens if there is a proposal to terminate an existing fluoridation scheme

Same consultation and decision-making procedures as for a proposal to introduce a scheme

If a local authority water proposes to terminate a fluoridation scheme already covering the whole or part of its resident population, it must follow the procedures laid down in the regulations – Regulations 9 – 14.

The procedures are basically the same as for introducing a new scheme.  Other local authorities affected by the proposal must be notified.  Arrangements for conducting public consultations and making decisions at each key stage in the process must be in accordance with the regulations.

Taking account of decommissioning and associated costs

Specifically, in a termination consultation, the authorities involved must have regard to the decommissioning and associated costs of terminating a scheme, in addition to the other factors specified in the regulations – Regulation 12.

Need to achieve the 67% threshold for the proposal to be able to proceed

Importantly, the local authority proposing the termination must secure 67% or more of the votes of the councils involved (with each council having points that reflect the number of individuals living in its area who are affected by the proposal) in order to go out to consultation and, following consultation, to be able to proceed with the termination.  If that level of support is not forthcoming, then a consultation cannot go ahead and a termination cannot be implemented.

Minimum interval of 20 years between termination consultations

Once a decision has been made not to proceed with a termination proposal, the regulations say that another termination consultation cannot take place for 20 years – Regulation 17.

This is presumably designed to avoid excessive amounts of public money being spent on frequent consultations and to ensure that existing fluoridation schemes, with an anticipated lifespan of around 20 years for newly installed plant and equipment, are given an opportunity to deliver dental benefits and value for money.

Stage 6: Proposal to upgrade or replace fluoridation plant otherwise than to meet operational requirements or health and safety standards

There is a fourth scenario to which the consultation and decision-making regulations apply.  This relates to a proposal by a local authority to upgrade or replace fluoridation plant otherwise than for the purpose of meeting operational requirements or health and safety standards.

Vast majority of plant upgrades or replacements likely to be for operational or health and safety reasons

For the most part, the need to upgrade or replace plant will arise directly because of operational needs (to maintain continuity of a fluoridation scheme when plant wears out or breaks down, for example) or for health and safety reasons.  None of these situations triggers the need for a public consultation.

Same consultation and decision-making procedures as for a proposal to introduce a scheme

However, if the proposal to spend public money on upgraded or replacement plant is not linked to operational requirements or health and safety, a consultation must take place before any work can go ahead.  The regulations lay down the procedures to be followed – Regulations 18 – 23.  These are basically the same as for consultations and decision-making on new schemes, variations to schemes or terminations of schemes.