Unlawful practice of Dentistry- beware!
This is another example of a successful prosecution in the context of tooth whitening. It provides guidance on the determination of whether tooth whitening treatment comes within the meaning of the practice of Dentistry pursuant to s 37 of the Dentists Act 1984. Only those persons who have successfully registered with the General Dental Council, can practice dentistry such as dentists, clinical dental technicians, dental nurses and dental hygienists to name but a few.
The individual was prosecuted in the magistrates’ court facing a count of unlawfully practising dentistry and unlawfully carrying out the business of dentistry. She had a qualification from a beauty school and was insured to carry out tooth whitening providing treatments which complied with UK and EU law. The investigation arose out of a complaint made by a client who had been dissatisfied with the treatment.
The case highlighted the fact that it is common ground that tooth whitening is a treatment. What was disputed was whether and to what extent it was “usually performed by dentists”. The Council produced expert evidence which provided that tooth whitening was a treatment ordinarily or usually performed by a dentist and also relied on GDC guidance. In the Magistrates’ Court, the District Judge ruled that the expert evidence was only capable of proving that the treatment in respect of tooth whitening ought to be considered to be the practice of dentistry. Against this Ms Jamous argued that even if the evidence proved that the practice was usually given by dentists it was not sufficient to prove that it was usually given by dentists in the context of s37. She argued that unless it could be shown that the treatment was a specialist treatment, peculiar to dentists it could not be held that it fell within the definition of the practice of dentistry. She argued that as anyone could purchase the product used by her and treat themselves or a friend as it is freely available to buy and regularly used by those who were not dentists, it was therefore not the practice of dentistry.
The prosecution failed.
The GDC appealed by way of case stated. On appeal the court found that it was necessary and incumbent upon the District Judge to have been sure that the necessary facts had been proved.
It was held that the guidance relied upon by the Council was general guidance issued in order to regulate the profession of dentistry rather than to define the nature and type of work undertaken by a dentist. It could refer to treatments which viewed in isolation could not be regarded as describing the practice of dentistry. The guidance did not however, determine the scope of s 37.
The case makes it clear that the precise circumstances in which a treatment is given must fall to be considered together with appropriate expert evidence and any other relevant guidance. Whether a treatment falls within the definition of the practice of dentistry will depend on whether it is usually given by dentists and upon the factual circumstances as a whole in which it was given. In this case taking all of these into consideration, it was determined that it was the practice of dentistry and was therefore proscribed by section 38 and 40 of the Act. The case has been sent back to the Magistrates’ Court for sentence.
Section 37 determines the scope of a profession and those eligible to practise within that profession. This is to enable the proper supervision training discipline of that profession and is necessary for patient safety and protection of the public. The products associated with tooth whitening can be harmful if not applied properly or in the appropriate quantities. The court therefore rejected the argument that there were people applying the products themselves in the context of their own homes and were unqualified and unregulated . The public require protection from those who seek to provide a treatment to others, including where payment is made for the same where they are not qualified and unregulated. The issue that is also relevant here is not whether dentists historically provided the treatments but whether the evidence establishes that they usually performed the treatment in question.
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