Lasting Powers of Attorney: recent key developments
Judgment date: 10 May 2013
High Court holds that teeth whitening treatment comes within the meaning of the practice of dentistry as identified in section 37 of the Dentists Act 1984.
This appeal by way of case stated from District Judge Roscoe at Westminster Magistrates Court considered the question of whether tooth whitening comes within the meaning of the practice of dentistry as identified in section 37 of the Dentists Act 1984 (the Act).
The defendant (D) was offering tooth whitening to the public, providing treatments which complied with UK and EU law. Although she was insured to carry out cosmetic tooth whitening, her only qualification was from the Fuss Beauty School, where she completed a single day course. In December 2011, D carried out tooth whitening on a patient by applying gel to the teeth and then shining a light, and was duly paid for the treatment. The patient complained about the treatment and was said to have had adverse side effects.
The GDC alleged that D had unlawfully practised dentistry, namely tooth whitening, on 27 December 2011 contrary to sections 38 (1) and (2) of the Dentists Act 1984 and further that she had carried on the business of dentistry on or before 27 December 2011 contrary to sections 41 (1) and (1B) of the Act. The Act 1984 makes it a criminal offence for anyone other than a registered dental professional to carry out dentistry.
Section 37(1) of the Dentists Act 1984 (the Act)
Section 37(1) states that;
‘subject to subsection 1A for the purposes of this Act, the practise of dentistry shall be deemed to include the performance of any such operation and the giving of any such treatment, advice or attendance as is usually performed or given by dentists; and any person who performs any operation or gives any treatment, advice or attendance on or to any person as preparatory to or for the purpose of or in connection with the fitting of dentures, artificial teeth or other dental appliances shall be deemed to have practised dentistry within the meaning of this Act.’
It was not in dispute as between the parties that tooth whitening was a treatment, therefore the key issue was whether it was a treatment usually performed by dentists.
In the lower court, the General Dental Council (GDC) had adduced two strands of evidence to prove that this was such a treatment; firstly from an expert who spoke to the potential dangers of tooth whitening and secondly the GDC Guidance ‘Scope of Practice’ (the guidance), dated April 2009.
The expert had not given evidence as to whether dentists usually gave or performed that treatment or not, merely on the potential dangers. The District Judge had concluded that the mere fact that risks were associated with the treatment did not establish that it was the practise of dentistry; all it did was tell her was why that treatment should be considered the practise of dentistry. Whilst agreeing with that proposition, the High Court considered that the evidence went further than that;
‘If the treatment on the evidence does create a risk, such as to require training for it to be administered, it is at least more likely that it falls within the scope of the section. After all, to include it within the scope of the section fulfils essential purposes of the Act: education, control and regulation of treatment for the protection of the public.’
The Court accepted however, that this evidence was ‘by no means dispositive’.
With reference to the Guidance (published pursuant to section 26B of the 1984 Act), it states that;
‘the scope of your practice is a way of describing what you are trained and competence to do. It describes the areas in which you have the knowledge, skills and experience to practise safely and effectively in the best interests of patients.’
Reliance was more particularly placed on the scope of practice relating to dental hygienists which specifically lists that ‘tooth whitening to the prescription of a dentist’ as an additional skill they might develop during their career.
The District Judge held that the main purpose of the guidance was to regulate the profession rather than to list and identify the work that a dentist undertakes. The High Court held that whilst this was true, it is also ‘of significance as tending to show what dentists usually do and is some evidence of that practice’. It was held that the District Judge should not have so readily dismissed the force of the Guidance, however it was again accepted that the evidence was not determinative.
It was held that whilst mention in the guidance was not sufficient in and of itself to bring an activity into the scope of practice within the meaning of section 37, it may well assist, along with other factors;
Whether a particular treatment will fall within the scope of the practice of dentistry turns on whether it is usually given by dentists. The definition depends on the circumstances viewed as a whole in which the treatment in question was given’.
It was concluded that a combination in this case of the evidence of the expert and the Guidance, with the undisputed evidence as to the circumstances in which the treatment was carried out, did prove that the teeth whitening given by the defendant as the practise of dentistry and was therefore proscribed by section 38 and 40, prohibiting the practice of dentistry by laymen. It was said that the lower Court would have been assisted by the calling of evidence to say what it was that dentists usually do.
The argument made on behalf of D that tooth whitening is an activity frequently performed by those who are not dentists, was rejected. A further argument that the circularity of the test in section 37 offends Article 7 of the ECHR because it was unclear what was proscribed or not, was also rejected.
Accordingly, the appeal was allowed and the matter was remitted to the Magistrates Court for sentence.
This result is no doubt a welcome one for the GDC who have for several years been calling for tougher controls on who is allowed to carry out teeth whitening in the UK. The High Court has helpfully provided further guidance on the application of the test at section 37 and the evidence required to prove that a treatment falls within its scope.
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