England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 May 2013

1. LORD JUSTICE MOSES: In this appeal by way of case stated from District Judge Roscoe at Westminster Magistrates' Court the question is whether tooth whitening treatment comes within the meaning of the practice of dentistry, as identified in section 37 of the Dentists Act 1984. The defendant was offering to the public the service of tooth whitening. She was insured to carry out cosmetic tooth whitening, providing treatments which complied with United Kingdom and European Union law, but her only qualification was from the Fuss Beauty School, which provided her with a one day course. She carried out tooth whitening on 27 December 2011 to a patient by applying gel to her teeth and then shining a light, for which she was paid. The patient was dissatisfied with the treatment and it is recorded, although, as the District Judge rightly said, it was irrelevant to the case, she suffered some adverse side effects.
2. Section 37(1) provides:

"subject to subsection 1A 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."

This, of course, is not a definition. It tells the reader what the practice is deemed to include and then sets out the test by which any operation, treatment, advice or attendance may be judged to be the practice of dentistry. The all-important statutory question is whether the treatment in issue is usually performed by dentists. In the instant appeal the questions are whether tooth whitening is a treatment, and there was no dispute as to that, and whether it is a treatment usually performed by dentists. There was a dispute about that.

3. The first question for this court is whether the General Dental Council, bringing this private prosecution, had adduced sufficient evidence to make the District Judge sure that this was a treatment usually performed by dentists. Two sources of evidence were adduced by the General Dental Council. The first was from an expert, Professor Walls, who spoke of the dangers of this particular treatment and the possible complications. Nowhere does the District Judge recall, let alone find as a fact, that the professor gave evidence as to whether dentists usually gave or performed that treatment or not. He had, as the Council did, merely relied on the risks associated with this treatment to show, as the professor put it, that this meant "that tooth whitening was the practice of dentistry." The associated risks were undisputed but the mere fact that risks were associated with the treatment did not, as the District Judge rightly concluded, establish that it was the practice of dentistry. The question posed by the statute is whether the treatment was usually performed by dentists, not whether the practice caused risks or danger if it was not performed by a dentist. The judge said that that evidence amounted to no more than telling her why that treatment should be considered the practice of dentistry.
4. This evidence does go somewhat 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. But I accept that the evidence, whilst tending to show that the treatment was the practice of dentistry, was by no means dispositive.
5. The second limb, or source of evidence, on which the Council relied was the guidance produced by the General Dental Council. It was produced by the Council pursuant to section 26B of the 1984 Act. As Mr Walsh QC, on behalf of the respondent/defendant, pointed out, there is no statutory provision requiring anyone to follow that guidance. The particular guidance in question is headed "Scope of Practice" and is dated April 2009. It says:

"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 guidance, in its introduction, sets out the skills and abilities each registrant group should have and reminds the reader that it is not a list of tasks that someone can do. Reliance was placed in particular on the scope of practice relating to dental hygienists, which includes under the rubric "Additional skills a dental hygienist might develop during their career include: tooth whitening to the prescription of a dentist". Similarly in relation to dental therapists, that is described as an additional skill which a dental therapist could develop. Under the heading of "Dentists", dealing with the scope of practice relating to them, it is said:

"Dentists can carry out all of the treatments we have already mentioned."

6. The District Judge took the view that the main purpose of the guidance was to regulate the profession of dentistry, rather than a document, identifying what work a dentist undertakes. That is true but it is, in my judgment, of significance as tending to show what dentists usually do and is some evidence of that practice. That particular guidance identifies what those to whom it refers, particularly dentists, are trained and accredited to do and in what respects they will be regulated. There is no point in training, accrediting and regulating treatment and practices which fall outwith the scope of the practice of dentistry. In my view, the District Judge should not so readily have dismissed the force of the guidance. But, again, the guidance was not dispositive. It is plain, as Mr Walsh pointed out, that it includes treatment which, when read in isolation, does not describe the practice of dentistry. For example, it says in relation to dental hygienists that they may give patients advice on how to stop smoking: it is absurd to think that the mere fact that you advise, even as a service, someone to stop smoking, you are practising as a dentist or offering to practise as a dentist.
7. Moreover, the guidance also includes, in relation to dental technicians, a description of an activity which the jurisprudence shows does not fall within section 37 at all and did not fall within its predecessor, the 1921 Act. In relation to the scope of practice of dental technicians, there is a reference to the repair and modification of dental devices. In Twyford v Puntschart (1947) 1 All ER 773, the Divisional Court held that merely repairing some dentures outside the mouth of a patient did not fall within section 14(2) of the Dentists Act 1921, the predecessor of section 37 of the 1984 Act. It follows that mere reference in the guidance to an activity is not a sufficient warrant of the scope of the practice within section 37. But that does not mean that the reference to a particular activity in the guidance can be dismissed as having no evidential value. It may well assist, in combination with other facts. 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. Advice given in relation to smoking may, in certain circumstances, not be part of the practice of dentistry but may, in other circumstances, be within the scope of that practice, if, for example, advice is given as to smoking in relation to advice given as to the care of a particular patient's teeth.
8. I conclude that a combination in this case of the evidence of Professor Walls and the guidance, with the evidence which was undisputed as to the circumstances in which this treatment was offered, did prove that the teeth whitening was given by the defendant as the practice of dentistry and was therefore proscribed by two of the sections under which she was charged, namely section 38, which prohibits the practice of dentistry by laymen, and section 40, which prohibits anyone being treated in the course of the business of dentistry.
9. I must add, much of the difficulty in this case would have been avoided if the Council had called someone to say what dentists usually do. In most cases it will be sufficient to serve a short statement from someone at the Council who has knowledge of those facts. It will only be necessary to call anyone if the statement is not accepted.
10. That is not, however, the end of this appeal. Even if the evidence was sufficient to prove that dentists usually provided the treatment of teeth whitening, Mr Walsh QC argues on behalf of the defendant that it was not capable of proving that that treatment was usually given by dentists within the meaning of section 37, properly construed. The judge too concluded, quite apart from the fact that she thought the evidence was insufficient, that tooth whitening was not the practice of dentistry by focusing on the meaning of the word "usually". In her judgment, set out in the case stated, she said that the word "usually" in section 37(1) of the Act 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, even if those treatments were and had in the past been provided by others.
11. In his clear and forceful submissions, Mr Walsh suggested that, absent proof that a treatment or practice was a specialist treatment peculiar to dentists, it was not possible to identify it as a treatment falling within the practice of dentistry. He drew attention to the fact that, provided the product used contained less than 0.1 per cent of hydrogen peroxide, it was freely available without prescription on the market, so that treating someone with such a product for the purposes of whitening teeth did not fall within section 37. As he pointed out, the use of hydrogen peroxide fell within the Cosmetic Products Safety Regulations 2008, which brought into force domestically Council Directive 76/768/EEC, the Cosmetics Directive, see Optident Limited v Secretary of State for Trade and Industry [2001] 3 CMLR 1. Anything with a higher concentration than 0.1 per cent was at the time proscribed but regulations have since been amended to permit concentrations of more than 0.1 per cent, up to 6 per cent hydrogen peroxide to be sold to dental practitioners.
12. Accordingly, since anyone could buy the product used by his client and treat themselves, a friend or member of the family, or anyone else, it was no different from the situation where a parent cleans a child's teeth. Since the activity was freely available and regularly performed by those who are not dentists, it was not the practice of dentistry.
13. I disagree. In order to identify the statutory question asked by section 37 of the 1984 Act, it is not necessary to add or amplify the words used by the statute in posing the question. It is also important to bear in mind what Lord Scott described as the potency of the terms which the section sought to define, see Oxford County Council v Oxford City Council [2006] 2 AC, paragraphs 82 and 83. What is being talked about is treatment in the course of the practice of dentistry. The statutory question asked by section 37 must be considered in the context in which it is asked and in the context of the purpose for which it is asked. It is asked for the purposes of identifying the scope of a profession. This is necessary for the purposes of training, education, discipline and the protection of the public. The public is to be protected from treatment offered by those who are not qualified as professionals to give it.
14. In such circumstances, it is not relevant, in answering the statutory question, to consider whether the treatment in issue is usually performed by those who are untrained and unregulated and are either doing it for themselves or are providing it to others in a domestic context. When a parent brushes a child's teeth, she is not providing treatment at all, she is not practising anything and she is certainly not acting as a professional.
15. If Mr Walsh is right in contending that it is relevant that the activity is frequently performed by those who are not dentists, then the mere fact that it is proved that dentists regularly perform that treatment would not be enough to prove what they 'usually' do. Even if the evidence on his view was sufficient, it would not prove the offence.
16. As the judge herself recognised, the mere fact that many non-dentists perform illegal treatment could not be a defence. But she qualified that correct proposition by asking whether the treatment was historically provided and concluded that there was no adequate evidence as to whether dentists historically provided that treatment. The question of whether they historically provided the treatment was, in my view, irrelevant to the question as to what they usually do. Accordingly, I disagree with the judge as to the meaning of "usually". The adverb means what it says. In those circumstances, if the evidence establishes that dentists usually perform the treatment in question, it is irrelevant what others do and whether dentists did so historically.
17. There was a further argument advanced in writing, although not pursued with any vigour orally, as to whether the provisions in section 37, being circular and failing to identify precisely what treatment, operations and other matters were the practice of dentistry or not, offended Article 7 of the European Convention on Human Rights because it was unclear whether a particular activity was proscribed or not. Section 37 does provide a test against which particular facts can be measured. It is for the prosecution to adduce such evidence as will meet that test. The fact that that evidence must be adduced by no means establishes that the definition of the offence is insufficiently precise or inaccessible. Whether the offences were committed will depend upon the facts. If authority is needed for such a proposition, it is to be found in Lord Bingham's speech in the R v Rimmington [2006] 1 AC 459 at paragraph 35, page 483.
18. For the reasons I have given, in my view, the judge ought to have been sure that the necessary facts were proved. I would, accordingly, allow the appeal and answer the questions she poses at the end of her case stated, 'no'.
19. MR JUSTICE BURNETT: I agree.
20. LORD JUSTICE MOSES: Yes, Ms Plaschkes?
21. MS PLASCHKES: My Lord, I think it follows that the case must be remitted to the Magistrates.
22. LORD JUSTICE MOSES: Why? On the terms of my judgment, there is only one answer. So why is it necessary to remit it?
23. MS PLASCHKES: Just on the question of the appropriate penalty, my Lord.
24. LORD JUSTICE MOSES: Quite right. So it will have to be remitted.
25. MS PLASCHKES: Yes.
26. LORD JUSTICE MOSES: We do not have the power to consider penalty? I thought we could do anything that the Magistrates could do? It may be very unwise for us to do so, simply because we have no feel for what the precedents are and what sort of penalties are given give. What do you think we ought to do, Mr Walsh?
27. MR WALSH: My Lord, the difficulty of course is the sentence will have to take place.
28. LORD JUSTICE MOSES: My Lord thinks we do not have the power to deal with it.
29. MR WALSH: I have never come across sentence being dealt with following the case stated (inaudible) but of course not necessarily to remit but if it is necessary to proceed to sentence --
30. LORD JUSTICE MOSES: I think it is sensible. Right, so we will allow the appeal, remit the case for sentence. It does not matter if it is the same judge, does it?
31. MS PLASCHKES: Not at all.
32. LORD JUSTICE MOSES: I think it is probably better from your point of view if it is.
33. What about costs?
34. MS PLASCHKES: My Lord, there is an application for costs and I hope my Lords have received a schedule.
35. LORD JUSTICE MOSES: Yes, I saw that.
36. MR JUSTICE BURNETT: There does not seem to be any VAT included. Is that deliberate?
37. MS PLASCHKES: Apparently they are not able to claim VAT, my Lord.
38. MR JUSTICE BURNETT: I was thinking for counsel.
39. LORD JUSTICE MOSES: Yes, they are going to miss out on your fees, aren't they?
40. MS PLASCHKES: VAT?
41. LORD JUSTICE MOSES: Because your fee will include VAT.
42. MS PLASCHKES: Yes.
43. LORD JUSTICE MOSES: Do you want to say anything then? It did not look a lot to me.
44. MR WALSH: My Lord, I think this is an application out of central funds, as I understand it.
45. LORD JUSTICE MOSES: Is it?
46. MR WALSH: The respondent is legally aided and I can address the court about that.
47. LORD JUSTICE MOSES: Are you asking for --
48. MS PLASCHKES: My Lord, if she is legally aided, then the application is out of central funds.
49. LORD JUSTICE MOSES: Is it? I cannot remember.
50. MR WALSH: Can I remind the court that, under the Prosecution of Offences Act 1985, section 17, in a case such as this the prosecution costs may be ordered out of central funds, effectively for a private prosecutor.
51. LORD JUSTICE MOSES: Why should your client not pay the costs? We may make whatever the form of the order is now not to be enforced unless the taxing judge says so, but I still do not quite understand why the public rather than you ought to pay the costs?
52. MR WALSH: I suppose the first reason is that --
53. LORD JUSTICE MOSES: You are quite right there is no costs judge involved.
54. MR WALSH: The first reason is this. The respondent appears before this court as a result of an order made by the court below --
55. LORD JUSTICE MOSES: By the judge, yes.
56. MR WALSH: -- and the various criticisms of the reasoning within that judgment, which is, I think, significant. It is right to say that the respondent --
57. LORD JUSTICE MOSES: Except your junior had done so terribly well that she egged the judge on into error.
58. MR WALSH: I am not sure whether that is right, whether the judge took a view on that at the time but, nonetheless, in relation to this respondent, Ms Jamous finds herself here as a result of the reasoning by the --
59. LORD JUSTICE MOSES: We will say prosecution costs out of central funds and then we will remit. Could you both draw up the order for the associate.
60. Thank you both very much.