General Dental Council v Jamous

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High Court holds teeth whitening comes within meaning of the practice of dentistry.

The High Court recently allowed an appeal brought by the General Dental Council (“GDC”). The GDC appealed a previous decision that tooth whitening did not constitute the “practice of dentistry”. The High Court held that tooth whitening is a treatment usually performed by dentists and therefore constituted the practice of dentistry under the Dentists Act 1984.

In the earlier ruling, a Magistrates’ Court found that tooth whitening did not constitute the practice of dentistry. The defendant had been prosecuted under the Dentists Act 1984 section 38 and section 41 for unlawfully practising dentistry. The Act makes it a criminal offence for anyone other that a registered dental professional to carry out dentistry.
The defendant was offering tooth whitening to the public, providing treatments which complied with UK and EU law and was insured to carry out cosmetic tooth whitening. The defendant had a qualification to perform these procedures from the Fuss Beauty School after completing a single day course. The defendant argued that since tooth whitening products were available on the market, anybody could treat themselves and therefore the practice was comparable to parents cleaning their children’s teeth.

In December 2011, the defendant carried out tooth whitening on a patient by applying gel to the patient’s teeth and then shining a light. The defendant received payment for this treatment. However, the patient later complained about the treatment and was said to have suffered adverse side effects.

The definition of the practice of dentistry is contained within section 37 of the Dentists Act 1984. This section states:

37 Definition of practice of dentistry:
(1) For the purposes of this Act, the practice 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, insertion or fixing of dentures, artificial teeth or other dental appliances shall be deemed to have practised dentistry within the meaning of this Act.

The main issue between the parties was whether tooth whitening was a treatment “usually performed or given by dentists”.

The GDC provided evidence from an expert witness who spoke of the dangers and complications of tooth whitening. The expert did not give evidence on whether dentists usually performed the treatment or not. The District Judge concluded that the expert evidence did not establish that tooth whitening was the practise of dentistry but showed why such a procedure should be considered the practise of dentistry.

The GDC also provided evidence of the GDC Guidance “Scope of Practice” (the guidance) dated April 2009, which provided that certain dental professionals such as hygienists could undertake tooth whitening only on the prescription of a dentist. The District Judge held that the main purpose of the guidance was to regulate the dentistry profession rather than identify what work a dentist undertook. The District Judge considered the ward “usually” under section 37 was to be considered in the wider comparative context of what was generally done in society, rather than treatments that were provided by dentists on a regular basis.

The High Court considered the expert evidence in a wider context. The High Court considered that if the treatment does create a risk as to require training for it to be administered, it is at least more likely that it falls within the scope of the section. However, the High Court said this evidence was by no means dispositive.

With reference to the GDC Guidance it states that:

“The scope of your practice is a way of describing what you are trained and competent 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.”

The High Court thought that it was “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 dismissed the force of the Guidance, however, it was accepted that the evidence was again not dispositive.

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 of the Act, 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 treatment in question was given.”

The High Court considered the combination the expert’s evidence, the Guidance and the circumstances in which the tooth whitening treatment was carried out. As such, the Court held that tooth whitening constituted the practice of dentistry and therefore a non dentist was prohibited from providing it by section 38 and section 41 of the dentists Act 1984.

The High Court identified that the general public had to be protected from receiving treatment from those not qualified to give it. They added that it was not relevant whether it could also be performed in a domestic context. For example, when a parent brushed a child’s teeth, he or she was not providing treatment to the child and was not practising a profession. If evidence established that dentists “usually” performed the treatment in question then it was irrelevant if others did too.

The consequence of this decision means that only dentists, dental hygienists and dental therapists (working to the prescription of a dentist) are allowed to carry out tooth whitening procedures and treatment.