High Court of Ireland Decisions

Kenny t/a Denture Express v. Dental Council & Ors [2004] IEHC 29 (27 February 2004)

 
THE HIGH COURT

1998/1538p

BETWEEN

MARTIN KENNY TRADING AS DENTURE EXPRESS

PLAINTIFF

AND THE DENTAL COUNCIL, MINISTER FOR HEALTH, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT delivered by Gilligan J. on the 27^th day of February, 2004

The plaintiff in these proceedings describes himself as a denturist and his occupation involves him engaging in the design, construction and fitting of removable dentures including their repair and alteration.

The plaintiff was born on 20^th April, 1964 and having left school he completed a four year dental craftsman apprenticeship in the years 1981 to 1985 with McEvoys in Dublin. At some time towards the latter period of his apprenticeship he sat the London City and Guilds Dental Craftsperson Certificate Intermediate Examination but was unsuccessful and he did not re-sit the examination citing as a reason the fact that his then employers would not give him any further time off.

He subsequently worked as a dental technician designing and constructing removable dentures. He also manufactured bite guards, professional gum shields, chrome cobalt dentures, bridge work and a variety of laboratory work. He went to work in England for a short period of time and then returned home in or about 1986. He then worked for a number of denturists, eventually setting up his own business at 128 Clontarf Road, in or about 1988, and this was the first time that the plaintiff had dealings directly with the public. It was around this time that he became an active member of the Irish Association for Denture Prosthesis (I.A.D.P.) which was an association of denturists which was heavily involved in lobbying the Minister for Health.

In the academic year 1990/1991 the plaintiff undertook a one year educational programme run by the I.A.D.P. at the Regional Technical College in Dundalk. This was described as a course in denturism for experienced dental technicians. At the conclusion of the course the plaintiff obtained a certificate in denturism. This course is based on a programme designed by the International Dentist Education Centre at George Brown College in Toronto, Canada.

The George Brown College of Applied Arts and Technology in Toronto, Canada offers a three year post-diploma/ post-degree program in denturism. Denturism is permitted in all but one jurisdiction in Canada. The I.A.D.P. based its programme, which was only available to "experienced dental technicians", on the programme at George Brown. The I.A.D.P. curriculum for 1990 shows that the following subjects were included in the syllabus: Human Biology, Microbiology and Hygiene, Oral Pathology, Advanced Prosthetics, Anatomy of the Head and Neck, First Aid and Law and Liability. Assessment was to be by means of home assignments, tutor marked assessments and continuous assessment. A certificate in denturism was awarded upon successful completion of the course.

The plaintiff has been practising successfully as a denturist and he would now see on average between 400 and 500 patients per annum and in 2002 his income was approximately €240,000.

The plaintiff works on his own using a barber's chair with no significant artificial light and no instruments are used inside the patient's mouth. The plaintiff does use a drill to alter the dentures he is placing in the patient's mouth and to alter any attachments which may have to be placed on adjoining teeth in the event of him dealing with partial dentures as opposed to full dentures.

The difficulty that arises in this case from the plaintiff's perspective is that it is illegal for him to work as a denturist dealing directly with the public.

Section 1 of the Dentists Act, 1928 provided that:

"The expression 'practice of dental surgery' means the performance of any operation and the giving of any treatment, advice, opinion or attendance usually performed or given by a dental surgeon or dentist and includes the performance of any operation or the giving of any treatment, advice or attendance on or to any person preparatory to or for the purpose of or in connection with the fitting, insertion or fixing of artificial teeth."

Section 45 of the Dentists Act, 1928 insofar as relevant provided as follows:

"(1) Subject to the provisions of this section it shall not be lawful for any person on or after the date of the passing of this Act to practise or to represent or hold himself out whether directly or by implication as practising or being prepared to practise dentistry or dental surgery unless such person is a registered dentist."

The effect of the Dentists Act, 1928 made it illegal for a person who was not a dentist to perform any operation or give any treatment, advice or attendance on or to any person preparatory to or for the purpose of or in connection with the fitting, insertion or fixing of artificial teeth.

In or about 1978 the I.A.D.P. submitted a memorandum to the Minister for Health in which they outlined, from their perspective, the position then obtaining in relation to the provision of dental health care in Ireland and made suggestions as to how this could be improved.

In this memorandum the I.A.D.P. claimed that many of their members had been trained both formally and by experience in all the procedures, processes and skills required to design and fabricate prosthetic appliances and that, despite a prohibition by law, a number of their members had provided their services directly to the public for some time. Nevertheless, the I.A.D.P. submitted that it was not in the public interest that such a practice should continue without certain controls and regulations and in their submission to the Minister for Health they made recommendations in this regard.

A working party, composed of representatives of the Department of Health, submitted a report in September, 1979 on various matters relating to dental care and treatment and they recommended against the introduction of denturists in Ireland. These contrasting views appear to have led to the I.A.D.P. requesting the Examiner of Restrictive Practices to investigate "the restrictive practices currently protecting the monopolistic position of the dental profession in this country".

Subsequently the Restrictive Practices Commission held an enquiry and their report was presented to the then Minister for Trade, Commerce and Tourism, on the 1^st October, 1982, and in the report between paras. 6.11 and 6.21 the Commission made certain conclusions and recommendations and a final recommendation at para. 6.22.

In the first alternative conclusion as reached at para. 6.14, the Commission took the view that prohibiting the supply of dentures by non-dentists is a restrictive practice not justified by any advantages it may offer and particularly that (in the terms of (a) and (g) of the third schedule to the Restrictive Practices Act, 1972 which lists matters which are not to be regarded as unfair practices) it unreasonably limits free and fair competition and unjustly restricts the freedom of choice of (dental) mechanics as to what services they will provide. This conclusion led to the recommendation that s. 45 of the Dentists Act, 1928 be amended so as to provide that the general prohibition on the carrying out of dentistry by a non-dentist does not apply to the provision of dentures to a person of eighteen years of age or over, provided it does not involve work being done on living tissue.

Reference was made to the fact that this alternative, if recommended, would represent a degree of liberalisation which does not seem to exist in any other country but the Commission took the view that circumstances differed from one country to another and the recommendation was based on the belief that, for the reasons stated, Irish circumstances do not justify making the supply of dentures by non-dentists an offence punishable by law.

The views of the Commission as expressed at para. 6.15 are of some importance in the context of this case wherein it was stated:

"It must be emphasised that this first point of view accepts as being entirely correct, the statement that the various aspects of dentistry, including prosthetics, must be conducted under a common professional and administrative authority. The view is dependent on the belief that the supply of dentures to the public by unqualified persons must be vigorously discouraged. In this regard the various health and social welfare authorities and the V.H.I. Board should give the practice no support whatever. Nevertheless, for the reasons stated, it is not necessary in this view (sic) to continue the present penal legislation."

The second alternative proposed at para. 6.16 of the Restrictive Practices Commission report stated as follows:

"The alternative view considered by the Commission was that it

was legitimate for s. 45 to make it an offence for unqualified persons to provide dentures if the authorities considered that the practice was dangerous and that this was the best way of preventing it but that the section was unnecessarily restrictive in not recognising that persons other than dentists could become qualified."

At para. 6.18 the Commission stated:

"The Department of Health accept in principle though not seeing it as either a likely or a particularly desirable development that there could be a grade of highly qualified personnel authorised to provide dentures – in other words, denturists. Denturists could in theory qualify in any of several different ways (for example their training might largely overlap that of dentists) but we have identified denturists for the purpose of this report (in paragraph 4.2) as mechanics who have obtained a recognised technical qualification at advanced level and who have undergone a period of clinical training since our enquiry is concerned only with types of denturism to which mechanics qua mechanics could aspire."

Further, at para. 6.20 the Commission stated:

". . . [t]he consequent recommendation would be that s. 45 of the Dentists Act, 1928 should be amended so as to provide that the general prohibition on the carrying on of dentistry by a non-dentist should not

apply to the provision of dentures by a denturist to a person of eighteen years of age or over provided it does not involve work done on living tissue, a denturist for this purpose being the holder of qualifications recognised by regulations which the Minister for Health may make from time to time. This is a flexible formula allowing for gradual evolution and would accommodate the difficulty that neither the planning of a course of training nor ministerial recognition could advance very far independently of each other. It also leaves open the possibility of a separate form of qualification."

The majority of the Commission at para. 6.22 favoured the first alternative and cautioned that the health and social welfare authorities and the V.H.I. Board should give no support whatever to the provision of dentures by unqualified persons.

Subsequent to the delivery of the Restrictive Practices Commission Report in 1982, the Dentists Act, 1928 and the Dentists (Amendment) Act, 1983 were repealed and a Dental Council was established, pursuant to the provisions of the Dentists Act, 1985. Section 6 of the Act provides that the general concern of the Council is to promote high standards of professional education and professional conduct among dentists and that the Council shall in particular fulfil the functions assigned to it by the Dentists Act, 1985.

The practice of dentistry is defined in s. 2 of the Dentists Act, 1985 as meaning:

"the performance of any operation and the giving of any treatment, advice, opinion or attendance which is usually performed or given by a dentist and includes the performance of any operation or the giving of any treatment, advice or attendance on or to any person preparatory to, for the purpose of, or in connection with, the fitting, insertion or fixing of artificial teeth".

Section 51 of the Dentists Act, 1985 maintained the prohibition on the practice of dentistry other than by registered dentists and provided for fines, and, at the discretion of the court, a term of imprisonment.

Section 53, dealing with auxiliary dental workers, states as follows:

"(1) The Council may, with the consent of the Minister, make a scheme for establishing classes of auxiliary dental workers who may undertake such class or classes of dental work as shall be specified by the Council notwithstanding that the doing of such work would constitute the practice of dentistry within the meaning of this Act.

(2) A scheme made by the Council under subsection (1) of this section shall—

( a ) determine the training and qualifications necessary to become a member of such class;

( b ) determine the nature of the dental work a member of any particular class may undertake and the conditions under which such work may be undertaken;

( c ) establish a register in respect of each class so established and provide for the entry in, or removal from, such register of the name of an auxiliary dental worker of the class to which the register relates;

( d ) specify the title which members of a particular class may use to indicate their membership of that class;

( e ) determine the fee to be charged for the registration of a person or the retention of his name in any register established under paragraph (c) of this subsection.

(3) The Council may, with the consent of the Minister, revoke or amend a scheme made under subsection (1) of this section.

(4) The Council shall determine a code for the maintenance of standards of conduct among any class or classes of auxiliary dental workers established under subsection (1) of this section.

(5) Where any person has failed to pay any retention fee determined by the Council under subsection (2) (e) of this section, the Council may decide that the registration of the name of such person in the register shall not have effect until the fee has been paid.

(6) The Council shall not make a decision under subsection (5) of this section unless the Council has not less than two months previously by notice in writing sent by pre-paid post to the person, at his address as stated in any register maintained by the Council under this section, requested payment of the fee on more than one occasion.

(7) Any member of a class of auxiliary dental workers established under a scheme made under this section who—

( a ) uses a title which he is not authorised to use under the provisions of a scheme made under this section, or

( b ) uses a title or description which is reasonably calculated to suggest that he possesses some status or qualification connected with dentistry other than one which he in fact possesses, or

( c ) not being a member of a class of auxiliary dental workers established under a scheme made by the Council under subsection (1) of this section, undertakes or represents or holds himself out, whether directly or by implication, as undertaking or being willing to undertake, dental work which that class of auxiliary dental workers may undertake, shall be guilty of an offence.

(8) A person who acts in contravention of subsection (7) of this section shall be liable on summary conviction to a fine not exceeding £1,000."

Section 54 provides that:

"(1) An auxiliary dental worker shall, in the performance of any dental work which the class of auxiliary dental workers of which he is a member may undertake in accordance with a scheme made by the Council under section 53 of this Act, comply with any conditions specified by the Council under subsection (2) of that section in regard to the performance of such dental work.

(2) Dental work carried out by an auxiliary dental worker in accordance with a scheme made by the Council under section 53 of this Act shall be carried out under the supervision of a registered dentist and any such dental work shall only be carried out after the registered dentist has examined the patient and has indicated to the auxiliary dental worker the course of treatment to be provided for the patient.

(3) The provisions of subsection (2) of this section shall not apply to the fitting, insertion or fixing of artificial teeth for persons of eighteen years or over, or the giving of advice to, or attendance on, such persons for such purposes by an auxiliary dental worker in accordance with a scheme made by the Council under section 53 of this Act: Provided that such work does not include any work on natural teeth or on living tissue."

Section 55 provides that:

"(1) The Minister may, by order, in any case where he considers the establishment of a particular class of auxiliary dental worker to be desirable, direct the Council to exercise the powers vested in it under section 53 of this Act to make a scheme for the establishment of such a class and, in any case where the Minister considers it desirable, he may, by order, direct the Council to make a scheme for the establishment of a particular class for a limited period in order that the value to the public of the existence of that class may be judged and the Council shall comply with any such direction.

(2) The Minister may amend or revoke an order made under this section, including this subsection."

There is no scheme in place to regulate the practice of denturism and accordingly Mr. Kenny, the plaintiff herein, continues to carry on his work as a denturist contrary to law and while he has never been prosecuted, nor indeed does he know of any other person working in a similar capacity who has been prosecuted, the Dental Council has put the newspapers on notice that any advertisement which in effect offers a denturist service is one which offers a service which is illegal in the State. This situation is confirmed by a copy of a letter of the 15^th July, 1996 from the Dental Council to the Advertising Manager of the Evening Herald, Middle Abbey Street, Dublin 1, as signed by T. Farren, Registrar, Dental Council.

The plaintiff makes the complaint that there should be a scheme in place and that the obligation on the defendants is mandatory to bring in a scheme or alternatively an "appropriate" scheme. Alternatively the plaintiff argues that s. 53 of the Act of 1985 gives the defendants a discretionary power, and both defendants have to exercise their discretion reasonably and fairly. The underlying argument advanced on the plaintiff's behalf is that the Dental Council will not bring in a scheme or alternatively an appropriate scheme because it wishes to protect the interest of dentists in practice.

The first named defendant makes the case that they have, in 1993 and 2001, brought forward schemes for the consent of the Minister but he has declined his consent on both occasions.

The second named defendant says that on both occasions he exercised his discretion fairly and reasonably and that basically there is nothing further he can do.

The reliefs sought by the plaintiff are as follows:

(a) A Declaration that the defendants have failed to vindicate the constitutional rights of the plaintiff to work and earn a livelihood guaranteed by Article 40.3;

(b) An Order directing the defendants and each of them to take such steps as are necessary to vindicate the plaintiff's constitutional rights;

(c) A Declaration that the plaintiff is entitled to exploit his profession or craft as a denturist by making, fitting and selling artificial dentures directly to the public.

(d) A Declaration that the actions of the defendants and each of them and the members of the Council are in breach of the European Treaty and/or the Competition Act, 2002 and/or in breach of their duties under the Dentists Act, 1985.

(e) An Order requiring the Council to make a scheme pursuant to Part VII of the Dentists Act, 1985 in a manner which is consistent with the provisions of the Act, the European Treaty, the plaintiff's constitutional rights and does not offend the provisions of the Competition Act, 2002 in respect of the category of workers known as auxiliary dental workers.

(f) An Order requiring the Minister to compel the Council to prepare a lawful scheme within such period as may be prescribed by this Honourable Court.

(g) Damages, including exemplary damages for breach of statutory duty and, or in the alternative, an unreasonable exercise of statutory powers.

(h) Damages, including exemplary damages, for breach of constitutional rights.

(i) Damages, including exemplary damages, for breach of the Competition Act and/or breach of the European Treaty.

(j) Such further or other relief as to this Honourable Court shall seem proper.

(k) Costs.

I take the view that the first issue to be resolved is whether or not there is a mandatory obligation on the defendants or either of them to bring in a scheme pursuant to Part VII of the Dentists Act, 1985 to enable denturists to deal directly with members of the public and to supply and fit prosthetic appliances without the intervention and/or supervision of a dentist.

Alleged Breach of a Mandatory Statutory Duty

The plaintiff submits that having regard to the provisions of the Act of 1985 and the state of the law prior thereto that the Oireachtas imposed a mandatory duty under the Act of 1985 on the defendants to establish a scheme whereby a class of auxiliary dental worker would be entitled to provide dentures directly to the public. In this respect the plaintiff points to the report of the Restrictive Practices Commission in 1982 which examined the prohibition under s. 45 of the Dentists Act, 1928 on the provision of dentures to the public other than by registered dentists. The Commission concluded that the existing prohibition was a restrictive practice and should be removed. Against this background the plaintiff submits that the Act of 1985 was intended to effect a change in the law and to remove the ban. The plaintiff accordingly claims that the only available interpretation of the Act of 1985 is that the Oireachtas intended to confer on the defendants a discretion as to the content of the scheme, not a discretion as to the existence of a scheme.

A literal reading of the relevant sections (ss. 53 and 55) indicates that the powers bestowed are discretionary. The plaintiff however argues that "may" is to be read as "shall" and further that there is a mandatory obligation on the defendants to introduce such a scheme specifically in respect of denturists (clinical dental technicians). The principles of legislative interpretation are well established; in interpreting a statute the starting point for the courts is the text of the legislation itself. The courts adopt the literal rule of interpretation and will only depart from this approach where to construe the text literally would lead to an absurdity. In Howard v Commissioners of Public Works [1994] 1 I.R. 101 at p. 151, Blayney J. cited Craies on Statute Law 1971 (7^th ed.) at p. 65:

"The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver."

Where a literal approach would lead to an absurdity the courts will adopt a purposive or schematic approach to the interpretation of the statute as in the Supreme Court decision of Nestor v. Murphy [1979] I.R. 326. The court will examine the purpose and scheme of the statute in order to interpret the provision in question so as to avoid the absurdity. However as Denham J. in Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98 at p. 111 was careful to point out in adopting the purposive approach the court must be careful not to infringe the separation of powers.

"This rule is now more commonly called the purposive approach. In Pepper v. Hart [1993] AC 593 Griffiths L.J. stated at p. 617:-

'The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation. . .'

I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature."

Accordingly I am satisfied that the first question to be considered is whether a literal interpretation would lead to an absurdity, and only then should this Court go on to adopt one of the other canons of interpretation. It is not evident that an absurdity does result from the fact that a discretion was granted in respect of the decision to implement a scheme for establishing classes of auxiliary dental workers. It is clear that in the establishment of a class of dental auxiliary many considerations must be taken into account, including but not confined to those set out in s. 53(2) of the Act of 1985. As the evidence has demonstrated there are, for example, many public health concerns to be addressed in the practice of denturism which the Dental Council may be in a much better position to assess than the Oireachtas.

Moreover, the mere fact that this Court might consider the legislation to be unsatisfactory or deficient in allowing for this element of discretion is not sufficient to ground the suggestion of an absurdity. In Rafferty v. Crowley [1984] I.L.R.M. 350 at p. 353, Murphy J. refused to read an exception into s. 80 of the Building Societies Act, 1976 on the grounds that it would have been a "relatively easy task" for the legislature to do so itself.

"In fact it does not require reference to examples or precedents confidently to infer that the legislature in enacting s 80 in its existing form was conscious of the fact that it could have exempted from the scope of the prohibition certain prior mortgages or charges and deliberately chose not to do so. In these circumstances it seems to me that I am precluded from interpreting s. 80 so as to achieve an effect – however desirable – not intended by the Oireachtas."

Had the Oireachtas wished to make the implementation of a scheme for auxiliary dental workers mandatory it would have been a "relatively easy task". Likewise had the Oireachtas required such a scheme to be set up specifically for denturists it would have been perfectly possible for it do so. Yet the fact remains that it did not and whether this Court might consider it more desirable had it done so is not relevant. There is no reference to denturists at all in the legislation.

This omission is significant in respect of the submission that the Dentists Act, 1985 be interpreted in the light of the Restrictive Practices Commission report. Had the Oireachtas intended to give effect to its recommendation it is surprising that denturists were not specifically referred to. It is also important to note that the legislation does not give effect to the primary recommendation of the Commission, which was that the prohibition should simply be removed but rather, one of its alternative conclusions, which was that provision be made for the possibility that a grade of denturist would be created. This was however "no more than a recommendation that the practice of denturism should not be prohibited by law. It is emphatically not a recommendation that steps should be taken to create a grade of denturists". In addition, as the first named defendant submits and as the evidence has demonstrated, much has changed since this report has been completed, especially in terms of awareness of cross infection and the dangers to public health. This must be taken into account in considering the relevance of the report.

It is also important to interpret the act so as to avoid any internal inconsistency. To read s. 53 of the Dentists Act, 1985 as imposing a mandatory obligation on the Dental Council to produce a scheme would be inconsistent with the power granted to the Minister to direct the Council to exercise its powers under s. 55 of the Act of 1985. In other words if the Dental Council has no choice in the matter it should not be necessary to confer this power to compel the production of a scheme on the Minister. Likewise to read s. 55(1) as imposing a mandatory obligation on the Minister would be inconsistent with his power under the same section to direct the establishment of a particular class of auxiliary dental worker for a limited period "in order that the value to the public of the existence of that class may be judged…"

Furthermore, there are many other instances in the Dentists Act, 1985 where the legislature chose to use the words "shall" or "may"; the words are not used interchangeably but are clearly intended to mean different things. There is thus no reason to assume that on this occasion the legislature meant to say "shall" where it chose to say "may". Not merely would I have to reach this conclusion but I would additionally have to conclude that "classes of auxiliary dental workers" should be read as referring specifically to "denturists or clinical dental technicians."

It is also clear from the case law that the general rule is that where "may" is used it is to be read as conferring a discretionary power. The case of State (Sheehan) v. Ireland [1987] I.R. 550 is instructive. The case concerned s. 60 of the Civil Liability Act, 1961 which provided for liability for non-feasance in respect of road authorities. Section 60(7) provided that:

"This section shall come into operation on such day, not earlier than the 1^st day of April, 1967, as may be fixed therefor by order made by the Government."

Henchy J. at p. 561 held:

"I am satisfied that s. 60, sub-s. 7 is merely enabling. The uses of "shall" and "may", both in the sub-section and in the section as a whole, point to the conclusion that the radical law-reform embodied in the section was intended not to come into effect before the 1st April, 1967, and thereafter only on such day as may be fixed by an order made by the Government. Not, be it noted, on such date as shall be fixed by the Government. Limiting words such as "as soon as may be" or "as soon as convenient", which are to be found in comparable statutory provisions, are markedly absent." (emphasis in original)

The present case is equally clear, ss. 53 and 55 are merely enabling; a discretion has been conferred on both the Dental Council and the Minister.

The plaintiff, however, submits that in this case the words used are to be interpreted as mandatory, relying on in particular the House of Lords decision in Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214. In that case the words "it shall be lawful" were held capable of imposing an obligation and not simply a permission. The House of Lords acknowledged that the phrase was merely enabling but that in certain circumstances it was possible to show that there was a duty on the part of the person on whom the power had been conferred to exercise that power. In In re Application of Dunne [1968] I.R. 105, at p. 116, this proposition was endorsed by the Supreme Court, Walsh J. stated that:

"It is a well-recognised canon of construction, as Lord Cairns said in Julius v. Lord Bishop of Oxford, that "where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised."

At p. 244 of the report Lord Blackburn said:--

"The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right."

In the Dunne case the court considered s. 19(2) of the Intoxicating Liquor Act, 1960 which provided that the District Court "may order" the extinguishment of a seven day publican's licence where an applicant shows to the satisfaction of the Court that he has procured the consent of the holder to its extinguishment. Walsh J. at p. 117 held:

"Sect. 19 quite clearly exists for the benefit of persons holding hotel licences. If such holders comply with the requirements of the section they can obtain the right to have a public bar. The section provides the matters upon which the court must be satisfied before such right can arise. The section does not make any provision for the consideration of any other matters by the court in question upon such an application, or for the consideration of the views of any other person or persons upon the application."

The Dunne case and the proposition from Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214, can be distinguished from the present case. In the first place there is not a defined class of persons in whose favour the power to create a class of dental auxiliary worker is to be exercised. The Act of 1985 does not refer to denturists at all. It certainly does not specifically point out illegally practising denturists as a class of persons entitled to call for the making of a scheme. The context of s. 54(3) of the Act of 1985 does not in my view amount, as the plaintiff submits, to the identification of a finite class of denturist. A different class of auxiliary worker could be created by the Council with various functions, including the work involved in denturism.

Nor are there any conditions specified under which such persons would be entitled to call for the establishment of a scheme, as is envisaged in Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214, there is not a clear set of criteria set out in the legislation which merely requires implementation; s. 53(2) of the Act of 1985 simply indicates certain matters which must be addressed by the Dental Council in exercising its power under the section to make a scheme in respect of auxiliary dental workers. The plaintiff himself acknowledges that a discretion has been granted to the Dental Council to decide the content of a scheme, and under such discretion matters not referred to in the Act of 1985 would fall for consideration. Furthermore any scheme proposed by the Dental Council must then be consented to by the Minister. It is clear that this complex two tier process is not comparable to the cases relied upon by the plaintiff.

The plaintiff also relies on the Supreme Court decision in Bakht v. The Medical Council [1990] 1 I.R. 515. The case concerned s. 27(2)(d) of the Medical Practitioners Act, 1978 which provides that:

"Any person who...(d) satisfies the Council that he has undergone such courses of training and passed such examinations as are specified for the purposes of this section in rules made by the Council...shall, on making application in the form and manner determined by the Council and on payment of the appropriate fee, be registered in the register." (emphasis added)

The Medical Council submitted that that the section conferred a discretion on the Council to decide whether such rules should be made or not. This argument was rejected by the Supreme Court, Griffin J. stating at p. 523 that:

"I am satisfied that, having regard to the scheme of the sub-section, and to the words used in sub-s. 2 (d), the provisions contained in para. (d) were intended to require, and do require, rules to be made by the Council, and that to construe the words "as are specified for the purpose of this section in rules made by the Council" as other than mandatory would be an impermissible construction. The Council was, therefore, in my opinion required to make rules specifying the courses of training which must have been undergone, and the examinations which an applicant was required to pass, before any such applicant could qualify for registration."

I am not satisfied that this case provides support for the plaintiff's case as the wording used is in the first place mandatory and moreover was interpreted as being mandatory, the court rejecting the submission that words be read into the statute. Accordingly the case better supports the contention that the words used by the legislature should be literally interpreted. Although the Dentists Act, 1985, uses a similar phrase to s. 27(2)(d) ("rules made by the council") in s. 54(3) where reference is made to "a scheme made by the Council", this must be read in conjunction with s. 53 which provides that the Dental Council "may" make a scheme, in comparison to s. 27 of the Act of 1978 where the word "shall" is used.

Accordingly the plaintiff's submission that the provisions of the Dentists Act, 1985 impose a mandatory obligation on the defendants or either of them to bring in a scheme or an appropriate scheme in respect of denturists is rejected.

I take the view that the matter is one for the exercise of the discretion of the Dental Council and the Minister for Health.

The Dental Council's Discretion under the Dentists Act, 1985

Having reached the conclusion that the Act of 1985 does not impose on the defendants or either of them a mandatory obligation to bring in a scheme or an appropriate scheme in respect of denturists it is necessary to consider the nature and scope of their discretion under the act. The exercise of a statutory discretion is not unfettered and must be exercised in accordance with law. In East Donegal Co-Operative v. Attorney General [1970] I.R. 317 it was stated by Walsh J. in the Supreme Court at p. 341:

"…the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts."

In Kennedy v. Law Society of Ireland No. (3) [2002] I.R. 458 Fennelly J. noted at p. 488 that "[i]t is trite law that statutory powers must be exercised reasonably and in good faith and only for the purpose for which they were granted."

In Deane v. Voluntary Health Insurance Board (Unreported, High Court, Keane J., 22^nd April, 1993; Unreported, Supreme Court, 28^th July, 1994). Keane J., as he then was, made the following observations regarding the V.H.I. at p. 97:

"…the V.H.I. is not a private commercial organization; it is a public body established by the Oireachtas with statutorily defined objects and powers. While the enabling Act undoubtedly confers on the V.H.I. a wide discretion, under the ultimate control of the Minister, as to how it carries out those objectives and the manner in which it uses its powers, in common with other bodies of this nature it must use the powers entrusted to it fairly and reasonably."

Although there are undoubtedly many differences between the nature of the V.H.I. as a body and the Dental Council such comments are equally applicable to the Dental Council. It is clear that any public body to whom statutory powers have been entrusted must exercise those powers fairly and reasonably. It has been argued by the Dental Council that the plaintiff's claim is one which properly belongs to judicial review. It is therefore argued that the correct test to be applied is that which would apply in judicial review proceedings. It is submitted on behalf of the Dental Council that it could not be found to be acting irrationally or unreasonably under the test applied in judicial review. It is to be noted however that Deane v. Voluntary Health Insurance Board (Unreported, High Court, 22^nd April, 1993; Unreported, Supreme Court, 28^th July, 1994) is itself a plenary decision. Moreover in the Supreme Court in the Deane case Blayney J. considered the claim made by the V.H.I. that however unfair and unreasonable its decision may have been, it was not manifestly arbitrary or flagrantly in disregard of reason. Counsel cited the cases of Cassidy v. Minister for Industry and Commerce [1978] I.R. 297; The State (Keegan) v. The Stardust Victims Compensation Tribunal [1986] I.R. 642 and O'Keeffe v. An Bord Pleanála [1992] I.L.R.M. 237. Blayney J. stated at p. 31:

"In my opinion the authorities cited by Mr. Cooke are not relevant to the particular issue. The court is not considering whether the decision of the V.H.I. should be quashed. It is considering whether the learned trial judge was justified in finding that their decision was an unfair and unreasonable exercise of their powers. This conclusion was an inference drawn by the learned trial judge from the facts so what has to be considered is whether there was credible evidence to support the facts from which the inference was drawn and whether the learned trial judge was correct in the conclusion that he reached. (see Hay v. O'Grady [1992] I.L.R.M. p. 689.)"

It does appear in essence that the Supreme Court was simply concerned to ensure that there was credible evidence before the trial judge to support his finding.

It is submitted on behalf of the defendants that the court is being invited to examine the merits of a proposed scheme and that to do so would be to encroach on the separation of powers. However, while this Court must be careful not to interfere with the exercise of powers entrusted by the Oireachtas to the Dental Council it must ensure that those powers are exercised in a reasonable way.

The background to the present dispute is a protracted one, involving much correspondence between the Department for Health and the Dental Council over a period of more than 15 years. It is necessary to examine the context in which the Dental Council produced the draft schemes in the exercise of its powers.

Chronology of Correspondence between the Dental Council and the Minister

In May, 1988 the Council, by majority, passed a proposal that the Council "do not make a scheme for the establishment of denturists as a class of auxiliary workers under part 7 of the Dentists Act 1985". Following a request from the Minister for the Council's recommendations on denturists the Council reported to the Minister, Dr. Rory O'Hanlon, in April, 1989 that it had "decided not to make a scheme for the establishment of denturists as a class of auxiliary dental worker." In response to a request from the Minister in June, 1989 that the Council should "let him have the full clinical and other relevant reasons why it is not proposed to establish these categories of dental auxiliaries…" the Council indicated that it was reviewing this decision. On the 22^nd November, 1989 the Minister wrote to Colm O'Sullivan, the President of the Dental Council stating:

"I would be obliged therefore if the Dental Council would take an objective look at the need to establish here a class of denturist as already exists in some European countries and in many other countries abroad. It is my view that if a type of denturist was to be introduced here that the initiative in this respect should come from the Council itself."

In response the Council expressed the hope that it would be possible to present to him "an objective and up-to date report as early as possible".

On the 8^th June, 1990 the Department wrote inquiring as to the progress made by the Council in respect of this request. On the 14^th June, 1990 Colm O'Sullivan replied on behalf of the Council apologising for the delay citing the difficulties the Council faced in gathering relevant information on the subject. In a letter dated 27^th June, 1990 the Department responded asking the Council to proceed on the basis of the data and information readily available to it. Finally on the 1^st October, 1990 Minister O'Hanlon was sent a copy of the Council's report entitled "An objective need view on the need to establish a class of denturist in Ireland."

Departmental minutes for the 9^th April, 1992 note that at a meeting between the then Minister, Dr. John O'Connell and the Dental Council the Minister requested that the Dental Council submit an outline "Scheme for Denturists" to be with him by the end of the month. On the 14^th May, 1992 the Council wrote to the Minister submitting to him "a summary of the Council's views on the subject of denturism" and "a draft programme prepared by two senior academics which indicates the type and extent of training required to equip a person to prescribe and fit dentures to edentulous patients". The letter stated that "[i]n a climate of both decreasing tooth loss and an increase in available dental manpower the Dental Council can not recommend that a new professional grade of denturist should be established at this time."

The Minister replied to the Dental Council on the 31^st July, 1992 stating that it appeared that the Council had misunderstood his request and stating:

"I am anxious that the Council should bring forward for my approval a scheme as provided under section 53 of the Act and I would be glad if the Council could do so forthwith." (emphasis in original)

The Minister also made known his desire that such a scheme should contain what is known as a "grandfather clause" stating:

"As I indicated at our meeting I am anxious that particular consideration be given to the position of persons who have been engaged for many years in the practice of denturism and that full account be taken of their experience, by way of special exemption if necessary to the general training requirements."

The Council replied on the 11^th September, 1992 to assure the Minister that his request was receiving "urgent consideration".

Subsequently it was decided at a meeting between the Minister and the President of the Dental Council on 7^th October, 1992 to set up a small group representative of the Council and the Department in order to expedite the introduction of a scheme for denturists and EDDA's (Expanded-Duty Dental Assistant). Under the terms of reference proposed by the Department consideration was to be given to the early introduction under the Dentists Act, 1985 of a scheme for denturists.

On the 9^th October, 1992 the President of the Dental Council wrote to Minister John O'Connell stating that the Council had a group at work to make a scheme for the introduction of denturists and noting "[t]hey will be pleased to hear of your determination to have an objective assessment of anyone who is to be allowed to treat patients".

The members of the working group, which first met in January 1993, were Professor Shanley and Colm O'Sullivan from the Dental Council (the Department having refused the Council's request for an increase in its representation by one) and Dr. Gerard Gavin, the then Assistant Chief Dental Officer and Mr. Tom Coleman from the Department. The Meeting was chaired by Dr. S. O'Hickey, the Chief Dental Officer of the Department and Mr. Harry Harris acted as secretary to the Group. Ultimately it appears from the minutes of the meeting that the group reached a general consensus that:

1. In principle there could be no objection to the introduction of a scheme for the registration of properly trained denturists.

2. It would be necessary to have an objective and independent assessment of those currently practicing illegally against the agreed standards.

3. Only those who reached this standard would be eligible for registration.

4. Additional training should be made available for those who failed to meet the standard initially but who might be brought up to the required standard.

At the second meeting of the group in February, 1993 "[t]he group agreed that the assessment procedure should be carried out within a scheme drawn up by the Council and approved by the Minister and not as a separate exercise prior to the introduction of a scheme." (emphasis in original)

A brief prepared for the Minister on the topic of the working group's meetings states that:

"An important part of any scheme to emerge from these discussions would be a 'grandfather clause' to allow persons who consider that they possess the standards laid down for the practice of denturism to submit themselves to independent and objective assessment for the purposes of registration."

The report of the Working Group proposed two alternatives, the first being the introduction of an Expanded Duty Dental Auxiliary (EDDA) and the second entitled:

"Introduce a Scheme for the creation of the Grade of Dental Worker to be known as Denturist.

2.1 In principle there can be no objection to the introduction of a scheme for the registration of properly trained/competent denturists.

2.2 Only those who reached a set standard would be eligible for registration.

. . .

2.5 It would be necessary to have an objective assessment of competence carried out of those currently practising illegally. This could only be carried out against the standards to be set.

2.6 Present practitioners who reached these standards would be eligible for registration.

2.7 Training would need to be provided for those who failed to meet the standard initially but who might be brought up to the required standard. Special cognizance would be taken of the skills acquired by current practitioners through on the job practice some of which extends over many years."

On the 6^th December, 1993, the Department met with the Council and requested that it submit to the Minister "a scheme for the introduction of a grade of auxiliary dental worker to be known as denturist/clinical dental technician". The Council did so, stating in the accompanying letter of the 16^th December, 1993 that:

"The council in submitting this scheme wish it to be known that it does not consider the establishment of clinical dental technician as being the best way forward and feels that the whole question of the future role and utilization of dental auxiliaries requires detailed consideration before a decision on any specific grade is taken".

The scheme proposed in 1993 by the Dental Council did not provide for the assessment of illegally practising denturists. Departmental minutes of a meeting between the Department and the Dental Council on the 20^th December, 1993 note that "The draft scheme did not include a 'grandfather clause' in the format suggested by the Department at the meeting held on 6^th December, 1993" The minutes also record that "the draft 'grandfather clause' as previously suggested was categorically rejected by the Council."

The 1993 draft scheme as proposed by the Council provided for the establishment of a class of Clinical Dental Technician. Such a class of persons would be given the necessary training to fit and insert, without supervision, removable full denture prostheses and to give advice to, or attendance on, such persons for such purposes. The only form of credit which would be given was to those with formal qualifications under s. 2.5 which provides:

"The training of a clinical dental technician may be carried out in one of the following ways:-

(i) a single fully integrated course

or

(ii) modular training arrangements whereby registered dental technicians and other registered auxiliary dental workers who hold appropriate certified qualifications could receive such additional modules of full-time training as would enable them to qualify as clinical dental technicians."

Subsequently the Council resubmitted its proposal to make a scheme for the establishment of dental technicians as a class of dental auxiliary. Dental technicians are not engaged in the practice of dentistry within the meaning of the Act of 1985 and accordingly such a scheme for registration would be voluntary, the aim apparently being to raise standards among dental technicians.

On 11^th March, 1996 the Department requested that the Council "clarify whether these proposals would affect in any way the position of denturists." The Council replied on 1 April, 1996 that such a scheme "should not affect members of the grade of dental technician who aspire to become clinical dental technicians/denturist should such classes be established in the future." The Department pressed further on the 10^th April, 1996 seeking clarification as to the position of "dental technicians currently practising as denturists and who would continue to do so in the absence of a Scheme for clinical dental technician/ denturist." The Council responded on 12^th April, 1996 stating that it was not aware of any persons currently practising in the jurisdiction as denturists, such persons being people who have formally trained as denturists.

"It does however understand that certain dental craftsmen provide a denture service directly to the public in blatant disregard of the provisions of the Dentists Act, 1985. These people are not denturists and should not be described as practising denturists."

The letter goes on to state that if such persons were approved for registration as dental technicians they would be required to abide by a code for the maintenance of standards within the profession.

"It is inevitable that adherence to the provisions of the Dentists Act, 1985 will be a requirement of this code. Any registered dental technician who operates in breach of the law is likely to face a charge of professional misconduct with the possible erasure of his/her name from the register."

On the 4^th February, 1998 the plaintiff instituted the present proceedings against the Dental Council, the Minister, Ireland and the Attorney General.

On the 30^th April, 1999 the then Minister for Health, wrote to Bernard McCartan, President of the Dental Council:

"I am anxious that the Council should re-examine the issue and resubmit for my approval a scheme for the establishment of a class of auxiliary dental worker to be known as clinical dental technician (or denturist), as provided under sections 53 and 54 of the Dentists Act, 1985 and that in designing the scheme that particular consideration be given to the position of persons who have been engaged in the practice of denturism and that full account be taken of their experience, by way of special exemption if necessary to the general training requirements."

On 21^st December, 2000 the Minister wrote to the Council noting that it had not yet received a formal response from the Council and re-iterating its request for an examination of the issue.

The Council replied on the 2^nd February, 2001 in a letter from Tom Farren, Registrar of the Dental Council, to Dora Hennessy in the Department which stated:

"I am directed by the Council's Auxiliary Dental Workers Committee to refer to your letter dated 21 December 2000…. [The Dental Council] has now established a sub-group to examine the issue of clinical dental technicians as a matter of urgency. The sub-group has already commenced on its work and it has identified a number of relevant matters on which it would welcome advice and/or information from the Department.

Reference was made in your letter to dental technicians engaged in the practice of denturism for many years having acquired a level of competence in the appropriate clinical and other skills required. Is there any hard evidence available in the Department that could verify the true situation in this regard? While undoubtedly some technicians will have achieved a level of competence in some aspects of the delivery of a denture service it would be useful to have this quantified. It would also be helpful to know what education and training they have in the basic sciences and particularly in pathology and cross infection control…"

On the 10^th May, 2001 Liam McCormack replied to the Dental Council stating that it had been assured by the I.A.D.P. that its members were "committed to and trained in hygiene standards and infection control." He continued: "[t]he Department has no evidential measurement of the proven competence of dental technicians in the basic sciences; however perhaps the Council may wish to enquire further with the I.A.D.P. itself."

On 30^th October, 2001 Mr. Farren wrote to Mr. McCormack in the Department, resubmitting the 1993 scheme in an updated format. The only principal difference being that such a scheme would allow clinical dental technicians to insert partial dentures in addition to full denture prostheses. In his letter Mr Farren stated:

"The Council has no knowledge of the alleged experience and competence of those dental technicians who apparently are engaged in the practice of denturism in Ireland. It is not aware of any recognised educational body providing courses of training for denturists and it would appear that any experience and competence that they have can only have been acquired through the illegal practice of dentistry.

It would seem highly incongruous for the Council to set rigid standards for the training and registration of dentist and dental hygienist and not apply similar standards in the case of clinical dental technicians.

Furthermore it would be an abrogation of the Council's responsibility to the public to admit to registration and confer status on persons who are inadequately trained and who are not qualified.

For the reasons stated above the Council cannot provide any shortcut to recognition for those dental technicians currently practising as denturists. It feels that the draft scheme that it drew up at the behest of the then Minister for Health in 1993 was a pragmatic approach to the practice of denturism which would provide a mechanism for dental technicians to qualify as clinical dental technicians and yet insure the protection of the public from the unqualified."

On the 15^th November, 2001 Liam McCormack, Assistant Principal Officer in the Department, wrote to the Dental Council noting that the Council had recently submitted a draft scheme for dental nurses in which the Council had inserted of its own volition a model of 'grandfather' clause which could equally apply to clinical dental technicians who have been engaged in the practise of denturism for many years. This clause provided that "[a] person who satisfies the Council that he/she has the requisite training and/or experience to enable him/her to carry out the duties of a dental nurse in a safe and efficient manner". The letter states "[g]iven its existence in the Dental Nurse scheme it would seem that the Council is open to such an exemption."

In a letter of the 20^th February, 2002 from Tom Farren to Mr Liam McCormack in the Department the Dental Council responded differentiating between the situation of the clinical dental technicians and dental nurses. The Council noted inter alia that the training of dental nurses was traditionally provided for the most part by employing dentists, that the work of dental nurses did not constitute the practice of dentistry and that verification would be available from employing dentist(s) of the dental nurses experience and competency. By contrast the Dental Council noted that there has been no training, formal or informal, for clinical dental technicians, that the work of a clinical dental technician does constitute the practice of dentistry and that, unlike dental nurses, persons practising as denturists have acted outside the law. The letter stated:

"[I]t would appear incongruous, unfair and discriminatory for them to be given an accommodation while their colleagues who continued to practise legitimately as dental technicians be denied registration as clinical dental technicians".

The letter concluded:

"Given the foregoing the council is strongly of the view that the provisions of a 'grandfather' clause as you have suggested would be an abrogation of its responsibilities to the public. It cannot see any justification for such a provision."

The exercise of the Dental Council's discretion

It is clear on the evidence that the Dental Council was not, from the outset, amenable to the idea of exercising its discretion to introduce a scheme for denturists. Under pressure from the Minister the Council did however exercise its discretion and presented draft schemes to the Minister firstly in 1993 and then in 2001. The Dentists Act, 1985 does not require the Dental Council to determine whether there should or should not be a scheme. Such a determination would involve questions of policy and resources to be considered by the Department. However, the Minister although he did not formally direct the Council to make a scheme under s. 55(1) was essentially asking the Dental Council to do so and in this sense it was obliged to produce a scheme even though it was not in favour of the idea.

Dr. Gryfe, a Consultant in oral and maxillofacial surgery, from Ontario, Canada gave evidence describing the three year full time course as provided at George Brown University which leads, on successful completion, to a diploma in denturism. He described how the course was divided into three parts: academic, technical and clinical. Each year there are approximately 300 applicants for the course, only 25 are accepted and the diploma is only awarded after a challenging examination from the licensing body in Ontario. In relation to the Dundalk course run by the I.A.D.P. which was of 100 hours duration he had not actually spoken with any of the lecturers. He considered that the course was carried out in a reasonable manner and thought was given to creating the course which covered the content of the course at George Brown University. He accepted that some areas were weak and could have been strengthened but felt overall that the course was quite strong academically. He did accept that there was no dentist involved in the course and that in an ideal world there would be a dentist. He did not know who actually provided the lectures. He accepted that the George Brown course was a fulltime three year course whereas the I.A.D.P. Dundalk course was of 100 hours duration. In the course of the George Brown course students would have worked on patients under supervision. He accepted the importance of acceptable training in the biological sciences and that the position in the United States of America was that only seven states allowed denturists deal directly with patients. In relation to the George Brown course he thought that dental technicians got credit but he did not know the actual percentage. He accepted that in principle they had to do the course but that the extent and requirement for the duration of training involved depended on the entrance level of training.

He accepted that a different attitude to denturists applied in different parts of the world and that some countries permitted denturists to practise with dentists on patients while others permitted denturists to practise without the supervision of a dentist.

He referred to the fact that in 1974 in Ontario, Canada, the first legislation introduced in relation to denturists provided for senior people to be admitted to practice by reason of their education and experience and that in general there was no problem with the "grandfather" process. He felt it appropriate to take into account a grandfather clause and in his view experience counted.

The plaintiff gave extensive evidence as regards his background, as to how he came to set up in practice and the nature and manner of his practice as carried out by him on a daily basis. He described as already indicated how in 1988 he set up his own business on the Clontarf Road and this was the first time he had dealings with members of the public. He described how he undertook the denturism course as run under the auspices of the I.A.D.P. at the RTC in Dundalk in the academic year 1990/1991 and as to how he received a certificate in denturism. He described the background to the course and the hours involved and how he did the course to "better himself". He described how he had certain contact with some hospitals and carried out procedures on patients. He referred to the fact that he also worked for a number of nursing homes and that he did full and partial dentures. If he encountered anything unusual he would send the patient to a dentist of their choice. He had never been prosecuted nor was he aware of anyone else being prosecuted. He only advertised in the Golden Pages and he was not able to avail of the medical card/PRSI scheme so that in effect patients had to pay him directly. Previously he had advertised in the Evening Herald newspaper until this form of advertising was stopped. He had in mind franchising his practice of denturism along a similar line to that as carried out by Specsavers and he was interested in opening up his franchised operation in a number of higher grade shopping centres but he was unable to get financial backing because his practice is illegal. He said that the effect on him personally of not being able to practise legally was always hanging over him and he found it distressing and could not plan for the future.

He indicated that he was willing to undertake further education and that the course was set up in Dundalk by the I.A.D.P. and while maybe there were a few faults with the course they could not obtain any assistance from any dentist.

The plaintiff stated that he makes dentures and fits them in the patients' mouths. He uses his barber's chair with no artificial light and no mirror and does not put any instruments in the patients' mouths. In certain circumstances he would send patients on to a dentist. He accepted that he kept no records of patients but he would know what they had previously got done on their return. The plaintiff was asked what questions he would ask of persons who may be infected, for example, with Hepatitis C and he stated "I am not qualified to ask patients any questions". He denied taking any shortcuts in his practice and said that he dealt with any patients who were dissatisfied and came back to him. He accepted that a most important feature was the health of his patients and he recognised the need for further training. He did not agree that he was adopting a procedure in practice which placed people at risk and while he accepted the role of the Dental Council was to ensure the safety of people receiving treatment he indicated that he needed a scheme pursuant to which he could practise. In relation to undertaking a full time course the plaintiff indicated that it probably would put him out of business but he would do the course as he would have no other choice.

He accepted that he wanted a grandfather clause which would take cognisances of his practical experience and allow him to continue in practice and further his education. He took the view that the Minister was correct in not consenting to both schemes as put forward by the Dental Council on the basis that there was no grandfather clause. He stated that no inquiries have ever been made of him nor had anyone ever suggested to him that he could not carry out the work of a denturist and in particular he had never received any communication from the Dental Council.

Mr. Tom Farren, Registrar of the Dental Council, described how prior to the Dental Council being set up in 1985 he had been Registrar of the Dental Board for five years and that in fact the Dental Council inherited him as Registrar. The Dentists Act, 1985 itself came into force on the 1^st June, 1985 and there were nineteen members on the Dental Council of whom thirteen were registered dentists and only six of these were in private practice. The full Dental Council met four times per annum. He gave evidence that the Dental Council never interpreted the provisions of the Act of 1985 to the effect that they had a legal obligation to bring in a scheme for denturists and that the Dental Council interpreted the provisions of the Act as giving them a discretion.

The former Dental Board had prosecuted people for the illegal practice of dentistry and following discussion with a Chief Superintendent of An Garda Síochána and the Director of Public Prosecutions it was the general view that it was inappropriate to police the practice of denturism and that it was a matter for the civil authorities. The Dental Council took a decision not to pursue prosecutions of illegal activity and where there was a perceived problem notices were placed in local newspapers advising about the legal situation pertaining to denturists.

Mr. Farren explained the extensive correspondence as passing between the Dental Council and the Department of Health and he expressed the view that in particular as a result of the scheme put forward by the Dental Council in December 1993, each side knew where the other stood and that this arose because there were different opinions on each side.

Mr. Farren set out the Dental Council's position which was that a grandfather clause could not allow unqualified persons practice denturism. The Dental Council had a responsibility under legislation to look after the public interest and it did not want unqualified people practising. He accepted that the Minister was entitled to adopt a different view and clearly there was a difference of opinion . He accepted that the Minister had made an unambiguous request for a scheme and that the desire on the part of the Minister was to cater for those persons who were practising illegally.

As regards the 'working group' two members were appointed to represent the Dental Council but he was not clear as to how the working group came into being. He did accept that it was set up in an attempt to resolve the issue pertaining to denturists. He did not believe that the Dental Council were aware as to the full nature of the discussions of the working group and stated that there was only one reference to the relevant meetings in the minutes of the Dental Council. He did not believe that the Dental Council ever had access to the working documents of the group and to his recollection the Dental Council were never made aware of the deliberations of the group. In his view the Dental Council were not appraised of the findings of the working group.

In his view the Dental Council would not allow anyone register who did not meet certain standards. He denied that the Dental Council was operating a closed shop and stated that any such reference in his view was disingenuous as the Dental Council would not be guided or motivated in any way to represent the interests of dentists. The position of the Dental Council he said was to protect the interests of the public whereas the Irish Dental Association (I.D.A) looked after the interests of practising dentists.

Mr. Farren saw no difficulty with the reference in the letter of the 2^nd day of February, 2001 to some denturists having obtained some level of competence. He reiterated that there could be no short cut to recognition but accepted that if people had training their competence could then be assessed. He took the view that the public interest was paramount to the Dental Council's position. He accepted that it was an unfortunate situation that the schemes as put forward by the Dental Council had not got the consent of the Minister. He took the view that the members of the Dental Council would welcome a scheme which included properly qualified denturists.

Professor O'Connell who is the Professor of Restorative Dentistry at Trinity College Dublin gave evidence stating that he was active in dental education and in charge of the three year full time dental technology diploma course as run by Trinity College at the Dublin Dental School and Hospital. The entry requirements were now governed by the CAO system and science was a pre-requisite subject.

Professor O'Connell gave evidence that he is a specialist in prosthodontics and outlined in great detail the necessity for appropriate education and training before a person could deal directly with members of the public for the purpose of fitting artificial teeth. He particularly emphasised the fact that in 90% of cases an adjoining tooth will require change to take as partial denture. He also emphasised the significance of cross infection control and the importance of sterilisation particularly in respect of bleeding. His overview of the plaintiff's practice is that it is dreadfully inadequate and unsafe particularly in respect of the risk of cross infection. In particular he took the view that the plaintiff's patients should be advised of the risk they have undergone and should go for testing (against the risk of infection). He took the view that having regard to the plaintiff's method of treatment using a barber's chair, no instruments, and with no artificial light it is not possible to carry out even a cursory examination of the patient's mouth. He was very critical of the plaintiff not keeping a patient history and emphasised the necessity to ascertain the patient's medical status.

Professor O'Connell took the view that given the public expectation of trust in health care professionals and the potential for harm to patients it would be irresponsible to compromise the quality of denturist training. If the State were to employ denturists and reimburse them for their services to the public then in his view it would be necessary to ensure that appropriate professional standards were applied to denturists. He took the view that the appropriate scheme for training denturists would be for them to complete the diploma in dental technology doing the three year full time course and then to have one year's clinical training in addition. In his view this should adequately qualify denturists to work directly with members of the public without the supervision of a dentist.

He gave his opinion that the 2001 scheme as introduced by the Dental Council was a rational proposal. He was not of the view that those whose experience had been gained worked illegally in the field should be entitled to an assessment and noted that illegal experience is not taken into account as a criterion in determining entry into the third level courses which train dentists and dental technicians. He described assessment as a snapshot and stated that no assessment could measure all aspects of a person's competence and in his view only a qualification could do this. Further, in his opinion experience is not a substitute for proper training. Professor O'Connell gave evidence that while clinical experience may achieve familiarity with technical procedures it could not, in his opinion, be a substitute for professional education in key areas. In his view experience could be considered relevant if the auxiliary was working with a dentist or under supervision but was not relevant if the auxiliary was practising directly with the public.

As regards the Dundalk RTC course which led to the plaintiff receiving a diploma in denturism Professor O'Connell gave evidence that the course appeared to him to have some areas of interest in relation to the provision of dentures but had major deficiencies and in his opinion the course would not meet the standards for training of any accredited denturist programme and further that completion of this programme would not form the basis for safe or effective treatment of patients.

Dr. Gerard Gavin, a dental surgeon gave evidence that he is the Chief Dental Officer in the Department of Health and the advisor to the Minister for Health on all aspects of dental health and services. He referred to the fact that prior to 1991 there had been a lot of questions in Dáil Éireann as regards a lack of provision of dentures and the question of denturists being allowed to practise. His main concern was with the denturist issue and he stated that the Department saw no reason not to allow denturists practise provided prior to practise they had successfully completed an objective assessment.

He shared the concerns as expressed by Professor O'Connell about the appropriateness of the practice as carried out by the plaintiff. He indicated that the Department was concerned that people such as the plaintiff remained outside the general process involving the dental profession. He accepted that the Minister for Health was not in a position to dictate the specific terms of any scheme that would be introduced by the Dental Council and that he quite simply either gives or does not give his consent. He accepted that the Minister had power to direct the Dental Council to bring forward a scheme but beyond that he could not go.

Dr. Gavin gave evidence that prior to the 1993 scheme the Department's view was that there should be a scheme that involved a type of grandfather clause and that the Department's position was that there should be an objective assessment of any person who put themselves forward to practise as a denturist but that it was not the role of the Department to suggest how this should be done. He was of the view that there were probably about 30 persons practising denturism and that some or all may have the necessary level of competence, but that it was a matter for the Dental Council to make the appropriate judgment in this regard and that the system had to be fair and seen to be fair. The Department had no actual data as regards any level of competence that may have been achieved by persons practising denturism.

He accepted that prior to the 1993 scheme being put forward by the Dental Council the Minister had strong views on the issue of denturists and that there was an outcry in the Dáil and in the media as regards a lack of service for providing dentures for medial card holders. He accepted that the Minister was anxious for a quick solution and that he felt that denturists could help with the problem. Dr. Gavin accepted that as of May, 1992 the Dental Council were quite rightly looking at the bigger picture and they would have to come to a view as to the relevant priorities and their views would probably be formed by an analysis of the available information. He was himself a member of the working group and while a grandfather clause had been proposed the Dental Council in their wisdom decided that it should not be in the scheme as put forward in December, 1993 notwithstanding the wishes of the Department and the Minister. Dr. Gavin stated that because the 1993 scheme as put forward by the Dental Council did not include a grandfather clause the whole issue fell off the radar screen, a judgment having been made by the Department of Health team that time had run out for a schedule for introducing a plan that included denturists. Dr. Gavin also indicated however, that even the grandfather clause as proposed by the working group might not have been acceptable to certain of the relevant groups representing the denturists such as the I.A.D.P. His own view was that the members of such groups simply wanted to be entitled to practise denturism legally.

The situation was reactivated in 1999 and again the principle issue was the inclusion of a grandfather clause. The necessity for dentures had in the intervening period largely been addressed. The whole issue of competition law was coming to the fore.

Dr. Gavin indicated that the Department of Health did not disagree with the Dental Council that there could be no short cut to professional recognition. The 2001 scheme replicated the 1993 scheme save for the fact that the new scheme provided for full and partial dentures. There was no grandfather clause contained in the 2001 scheme and in Dr. Gavin's opinion the scheme was appropriate in every other respect save for the necessity for a grandfather clause and objective assessment of those currently practising illegally. He took the view that the scheme would not be approved without such a clause. Dr. Gavin indicated that he was perfectly satisfied with the way the Dental Council conducted its business and from his five years of working with the Dental Council he was satisfied that their approach was reasonable. He went as far as to say that in his opinion the Dental Council was scrupulously fair. He agreed that the type of training scheme as advocated by Professor O'Connell fulfilled the ideal training programme. He was satisfied that the Dundalk RTC course as run under the auspices of the I.A.D.P. only touched on some relevant matters and was not adequate to meet the necessary training requirements. He accepted that s. 53 of the Dentists Act, 1985 placed great emphasis on the Dental Council governing training and qualifications and that a view that there should be no shortcut to recognition was an appropriate viewpoint from the Dental Council's perspective.

Dr. Gavin reiterated that the Department wanted to be scrupulously fair and that while none of the denturists might necessarily have met the relevant criteria the Department still felt that an objective test should be carried out on those who wished to present themselves to practise as denturists.

Dr. Gavin did not disagree with Professor O'Connell's opinion as regards the level of competence of Mr. Kenny, the plaintiff herein, in his practice.

He was of the view that the I.A.D.P. in fact were proposing that anyone who had obtained the certificate in denturism by completing the Dundalk RTC course and who had worked as a denturist should be entitled to be registered as a denturist and that this was their expectation. He accepted that it was reasonable for the Dental Council to insist on training and that while the Department may have disagreed in this regard the Department had different considerations pursuant to the Act of 1985. He was of the opinion that the denturists would continue practising illegally while requirements were being discussed and in his view the plaintiff wanted to continue to deal directly with the public while inadequately trained and inadequately qualified.

Dr. Gavin took the view that the desire of the Department was to regularise the practice of denturists in a fair and reasonable manner consistent with the interests of public health. He accepted that experience alone was not sufficient and had to be supplemented by training. He accepted that denturists as a body, once they had been legalised, were willing to be objectively assessed and were also willing to train up.

With regard to the working group Dr. Gavin assumed that someone from the Dental Council side would be reporting back to the Dental Council as in his view there was no point in being on a representative group if not representing the Dental Council. His clear understanding was that there was going to be a grandfather clause in the 1993 scheme and he was surprised when the scheme was put forward without any such clause. He accepted that there was a degree of frustration and exasperation within the Department at the lack of a grandfather clause.

Dr. Gavin did not, however, take a sceptical view of the way in which the Dental Council were behaving. He accepted that there was criticism within the Department of the Dental Council and was of the view that in some respects there was a misunderstanding of the workings of the Dental Council and that the reality was that there was a total divergence of views between the Dental Council and the Department that could not be bridged.

With reference to the working group he knew Mr. O'Sullivan, the President of the Dental Council, as a man of his word and he was part of the consensus who agreed the grandfather clause. Despite the frustration and exasperation as felt within the Department the Department was not sceptical of the bona fides of the Dental Council.

Dr. Gavin referred to the fact of the content of the letter of the 30^th April, 1999 wherein the Minister added a post script indicating that he regarded the matter as urgent and the fact that there was no reply from the Dental Council for quite a significant period of time. Dr. Gavin accepted that he was a member of the Dental Council during this period and he did not remember the letter being discussed at the Dental Council nor was there any document that records any discussion regarding the letter.

It is submitted on the plaintiff's behalf that the evidence in relation to the first named defendant clearly indicates that it was reluctant ever to introduce any scheme and it was only when pressure was applied by the Minister that the Dental Council produced draft schemes. The plaintiff makes the case that the Minister for Health was consistent in his view that there should be a scheme and that it should contain a grandfather clause.

It is further submitted on the plaintiff's behalf that there are numerous indications in the evidence that the first named defendant has failed to exercise its statutory powers fairly, reasonably and justly and that in fact the first named defendant has acted to protect the interest of the dental profession and has failed at all times to perform its statutory functions exclusively in the public interest. The plaintiff contends that the first named defendant has adopted multifarious strategies in its steadfast effort to resist the introduction of a scheme for denturists despite the considered views of the Minister for Health and his clinical advisers that such a scheme was required and despite the fact that at no stage has the Dental Council ever proffered a convincing explanation, or indeed any explanation, as to how the public interest has been and will continue to be better served by the absence of a scheme which inter alia determines the training and qualifications necessary to practise as a denturist and determines the nature of the dental work a denturist may undertake and the conditions under which such work may be undertaken.

The plaintiff further contends that it is manifestly clear that the regulation of clinical dental technicians who deal directly with the public would have better served the public interest than the approach which the first named defendant has adopted for the past eighteen years.

The plaintiff also contends that the Dental Council never once exhibited initiative in relation to the making of a scheme and when it did, it was only as a result of the repeated requests from the Department of Health. Despite the requests, the plaintiff contends that the Dental Council invariably failed, neglected and/or refused to comply with the request from the Department and when it did, it is contended on the plaintiff's behalf that it is reasonable to assume that as a matter of probability the Council was aware that neither of the schemes proposed would obtain the Minister's consent because of the absence of a grandfather clause, the Minister having made his desire for the inclusion of such a clause clear.

It is contended on behalf of the Dental Council that it has put forward two rational schemes for the Minister's approval. It thus asserts that it has fulfilled its responsibilities under the legislation. It points out that the Act of 1985 requires it to identify the education and training necessary to become a member of the particular category of auxiliary dental worker, in this case a denturist, which the draft schemes do. The Council claims that it would then be the responsibility of those conducting the training course, presumably the third level institution selected under a scheme, to assess whether someone might be exempted from part of it by reason, for instance, of experience gained in the area.

The Dental Council claims that on the basis of the evidence that to provide for the assessment of the plaintiff would be a waste of time as he could never have the ability to gain an exemption from the training required.

The Dental Council submit that Professor O'Connell's evidence that clinical experience such as that gained by Mr. Kenny could not be a substitute for professional education such as would be required to ensure the safe provision of dentures was not challenged before the court.

It is further submitted on behalf of the Dental Council that Professor O'Connell's unchallenged evidence is to the effect that if a person is to practise safely as an independent denturist, dealing directly with the public, that denturist must be trained and that experience alone does not modify the requirement for the proposed training programme, as envisaged by the Dental Council.

Counsel submitted that it was never suggested to Professor O'Connell that his view was incorrect. Counsel submitted that in proposing a scheme which dealt with training and education the Dental Council had fulfilled its duties under the Act of 1985. Once such a scheme was in place experience could be relevant in two areas; firstly, how an individual would find the course and secondly, the body running that course might give credit in the form of exemptions from certain parts of the course. Counsel further submits that the evidence of Dr. Gavin is also to the effect that there is no way illegally practising denturists could come up to the required standard.

It is submitted on behalf of the Dental Council that the fact that there are people practising illegally as denturists does not mean it is under an obligation to take such people into account. Emphasis is placed on the fact that there are no denturists in the strict sense of the term practising in the State in terms of having a recognised training and qualification in denturism.

Notwithstanding the discretion afforded to the Dental Council under the legislation the fact remains that once this discretion had been exercised the Council was under an obligation to exercise this power fairly and reasonably. It is also clear from the provisions of the Act of 1985 that the Dental Council were not obliged to allow the Minister to dictate the contents of any scheme it might propose as this is a function reserved to the Council. It is clear that the Act of 1985 does not specifically provide that account should be taken of people practising illegally as denturists. The Council, therefore, is only under an obligation to exercise its discretion fairly and reasonably and if in doing so it reached a decision that it would not be appropriate to include a grandfather clause in any scheme proposed this court could not interfere.

The basic problem that has arisen in this case is that the Minister clearly wanted a grandfather clause that would take full account of the experience of persons who had been engaged in the practice of denturism and if necessary he further wanted such persons to be given a special exemption to the general training requirements.

Pursuant to the provisions of the Act of 1985 the Minister did not have the power to oblige the Dental Council to insert any provisions into a relevant scheme as he saw fit. He only had the power to call on the Dental Council to produce a scheme and at the end of the day any scheme as produced by the Dental Council relating to denturists had to have his consent before it could come into being. That was the will of the Oireachtas as promulgated in the Act of 1985.

Clearly the Minister used considerable persuasive argument to try and get the Dental Council to introduce an appropriate grandfather clause and in this regard he appears to have had some success in October, 1992 with the then President of the Dental Council, Colm O'Sullivan. The working group that was set up agreed certain recommendations prior to the scheme of 1993 being introduced but the evidence suggests that this working group was not in close contact with the Dental Council and Mr. Farren has given evidence to the effect that the Dental Council may not in fact have received any documents from the working group and were not appraised of the decisions of the group. Mr. Farren was certainly adamant that while there may have been a consensus amongst the working group there was never a consensus between the Minister and the Dental Council that there be a grandfather clause.

The letter of 2^nd February, 2001 from the Dental Council to the Department of Health and Children appears to accept that some technicians would have achieved a level of competence in some aspects of the delivery of a denture service and that it would be useful to have this quantified and that it would be also helpful to know what educational training they have had in the basic sciences and in particular in pathology and cross infection control.

The Department indicated in their letter of 10^th May, 2001 that they had no evidential measurement of the proven competence of dental technicians in the basic sciences and suggested that the Dental Council might wish to enquire further with the I.A.D.P. itself but it does not appear that this suggestion was ever followed up.

However, no matter what the views of the then President of the Dental Council in 1992 may have been and no matter what the views or consensus may have been of the working group as set up prior to the 1993 scheme nor what other views may have been expressed, the critical decision in this case is that of the Dental Council in effect not to include a grandfather clause in either the 1993 or 2001 schemes.

In the circumstances of this case Mr. Kenny, the plaintiff, wants full account taken of the experience he has gained and in effect wants a special exemption to the general training requirements bearing in mind the completion by him of the one year denturism course as run under the auspices of the I.A.D.P. in Dundalk.

I am quite satisfied on the evidence adduced before me that the one year course as completed by the plaintiff and the certificate as obtained by him from the course run in Dundalk under the auspices of the I.A.D.P. may have had some areas of interest but contained major deficiencies and in this regard I rely on and accept the evidence of Professor O'Connell and reject the evidence of Dr. Gryffe. Further I accept and rely on the evidence of Professor O'Connell that completion of the one year Dundalk RTC course would not form the basis for safe or effective treatment of patients.

Accordingly it appears reasonable to come to the conclusion as I do that the one year RTC course as completed by the plaintiff in the academic year 1990/1991 does not amount to adequate training and would not form the basis for safe or effective treatment of patients. I am satisfied on the evidence to come to the conclusion that the plaintiff is not a qualified denturist.

It is against this background that the plaintiff makes the case that the Dental Council in exercising its discretion behaved unfairly and/or unreasonably in the exercise of its powers, by omitting a grandfather clause in the two schemes as proposed by it.

I have to bear in mind that it is not a matter for me to decide whether there should or should not be a grandfather clause contained in a scheme proposed by the Dental Council for the consent of the Minister for Health. I am dealing with the exercise of a discretion and as to whether that discretion was exercised fairly and reasonably.

The Dental Council in its letter of 30^th October, 2001 sets out the reasons why it has not included a grandfather clause and in particular states that it would be an abrogation of the Council's responsibility to the public to admit to registration and confer status on persons who are inadequately trained and who are not qualified.

I take into account the evidence of Professor O'Connell, which I accept, that the 2001 scheme as proposed by the Dental Council is in his opinion a rational scheme, (and in this regard I take the view that it is reasonable for me to conclude that the 1993 scheme at that point in time was also a rational scheme) and the evidence of Dr. Gavin that while there may have been frustration and exasperation within the Department of Health at the absence of a grandfather clause in both the proposed schemes as put forward by the Dental Council there was in his view no doubting the bona fides of the Dental Council.

It appears reasonable on the evidence adduced before me to come to a conclusion which I do that it would be irresponsible of the Dental Council to compromise in anyway the quality of denturists training given the public expectation of trust in healthcare professionals and the potential for harm to patients in a variety of ways as outlined by Professor O'Connell, whose evidence I accept in this regard, and in these circumstances I take the view that on the basis that the schemes as proposed by the Dental Council are rational and were proposed on the basis that the Dental Council considered it would be an abrogation of their responsibilities to the public in a matter of public health to provide a shortcut to recognition for those dental technicians currently practising as denturists I find that the Dental Council did not act unreasonably or unfairly in proposing a scheme without a grandfather clause.

I further find on the evidence there is no basis for the plaintiff's assertion that the Dental Council in some way exercised its discretion so as to favour the interests of dentists in practice.

Exercise of the Minister's Discretion under the Dentists Act, 1985

The plaintiff submits that the Minister has failed to use the powers available to him under the Dentists Act, 1985 to ensure the introduction of a scheme.

The first and most important power available to the Minister is of course the power to consent or refuse to consent to a scheme produced by the Dental Council under s. 53 of the Act of 1985. As the plaintiff's case relies upon the view that neither of the draft schemes produced by the Dental Council were appropriate it cannot be argued on the plaintiff's behalf that the Minister acted unreasonably in exercising his power under this section to refuse his consent to the 1993 and 2001 schemes. In any event the Minister's decision to refuse consent to a scheme under the Act of 1985 is entirely a matter for his discretion and would include consideration of issues of public health beyond the scope of intervention by this court. No application has been made seeking an order of certiorari in respect of the Minister's decision by way of judicial review. As a result the plaintiff instead submits that the Minister misinterpreted the Act of 1985 in failing to appreciate the ambit of the powers conferred on him in relation to the making of a scheme for denturists under ss. 9, 15 and 55.

Section 9(1) provides that the Council shall consist of 19 members. Under s. 9(1)(f) the Minister appoints four persons to be members of the Dental Council, at least two of whom shall not be registered dentists and who shall represent the interests of the general public as consumers of dental services. Section 9(2) provides that the Minister may, by regulation made after consultation with the Council, vary the provisions of sub-s. (1).

In respect of this section the plaintiff submits that the Minister had the power to alter the composition of the Dental Council insofar as he considered that it was failing to act in the public interest. The plaintiff's argument under this section cannot in any event be sustained, as the the Minister's power under s. 9 of the Act of 1985 allows him to alter the composition of the Council; but it does not however allow him to direct those members how to exercise their discretion. Once appointed the members of the Council are independent of the Minister.

Section 15 provides that:

"(1) If the Council fails, neglects or refuses to perform any function assigned to it under this Act, the Minister may, by order, direct the Council to discharge that function and for that purpose to do such other matters or things ancillary or incidental thereto as may be specified in the order.

(2) If the Council fails to comply with any direction of the Minister contained in an order made by him under subsection (1) of this section, the Minister may, by order, remove from office the members of the Council.

(3) An order made by the Minister under this section may contain such provisions as the Minister considers necessary to enable the functions of the Council to be performed notwithstanding the removal from office of its members, and any such order may, in particular, appoint a person or persons to discharge all or any of the functions of the Council."

In respect of s.15(1) it is submitted on the plaintiff's behalf that the Minister's failure to make an order under this section was a failure to exercise his discretion reasonably. This claim is based on the premise that the Dental Council has failed, neglected or refused to fulfil a function assigned to it under the act which this court has held was not made out.

In any event it is essential to the plaintiff's claim under this heading that the Minister would be able to direct that a grandfather clause be included in a scheme, otherwise the Dental Council would simply re-submit the schemes already produced. In such an event the exercise of the Minister's power would be futile and the Minister clearly cannot be said to have exercised his powers unreasonably in such circumstances. It is therefore claimed by the plaintiff that the power to direct ancillary or incidental matters confers on the Minister the power to direct the inclusion of a grandfather clause.

In support of the plaintiff's argument it is pointed out that under s. 55 of the Act of 1985, the Minister is vested with the power to direct the exercise of the Dental Council's powers under s. 53 of the Act to make a scheme for a class of dental auxiliary worker. It is submitted that s.15 of the Act cannot be a mere duplication of s. 55 of the Act and must accordingly extend beyond the power to direct the making of a scheme to the power to direct the contents of a scheme. This argument is unsustainable. It appears to be based on the assumption that the powers under s. 15 specifically relate to the making of a scheme for a class of dental auxiliary worker. However such powers to direct the performance of a function could have been used to direct the Council for example, to establish a register as required under the Act, or to direct the establishment of a fitness to practice committee i.e. to perform any of the various statutory functions conferred on the Council. There is accordingly no necessary duplication of powers under the sections.

In respect of sub-s. (2) of s. 15, again it is to be noted that while the Minister may remove members from the Council and replace them with alternative nominees, such persons once appointed would be independent of the Minister and his views and there could accordingly be no guarantee that they would produce a scheme or an appropriate scheme. It would be entirely unreasonable to suggest that the Minister go on removing and replacing members of the Council until a scheme was produced that he could consent to. This would entirely negate the two tier system set up by the Act of 1985 under which the Dental Council makes the scheme and the Minister must consent to it for it to come into being. The Act of 1985 does not provide the Minister with the power to direct the contents of a scheme; had the legislature wished the Minister to have the final say regarding the content of a scheme it could have done so.

In respect of s. 55 of the Act of 1985 it is again argued that the failure of the Minister to make an order directing the Council to exercise its powers to make a scheme was a failure to exercise his powers fairly and reasonably. As the Dental Council had already produced two schemes the Minister would have achieved nothing in simply directing the Council to produce "a scheme". It quite clear on the evidence that both sides held a different opinion as to the content of a scheme. Thus, as above, this argument is based upon the interpretation that the Minister had the power to direct the contents of a scheme. The section gives the Minister the power to identify a particular class of auxiliary dental worker in respect of which he believes a scheme should be made. It does not give him powers beyond that point. The Oireachtas envisaged a two tier system under which the details of such a scheme would be left to the Dental Council. Under this system the Minister can refuse to consent to a scheme produced by the Council but cannot go further and require the Council to include the elements necessary to secure his consent. He can only make his views known to the Council, as he did, and it is then a matter for the Dental Council to either agree with or reject his views.

It is clear on the evidence that the Dental Council had been left in no doubt as to what the Minister's views were. It is clear on the evidence that the Minister wanted a scheme for denturists under s. 53 of the Act and that he wanted a grandfather type clause. The exercise of his powers under the Act could not have achieved anything further beyond what the Minister's informal efforts had already achieved. On two occasions the Minister had made it clear that he wanted the Dental Council to bring in a scheme with a grandfather clause and on two occasions the Dental Council had produced a scheme but omitted the grandfather clause. The Dental Council were thus steadfast in adhering to their decision not to include a grandfather clause. In my view an order under s. 55 of the Act would not have further impressed on the Dental Council the view of the Minister. Any such order as made by the Minister could not have directed the content of any further scheme produced and thus I do not fault the Minister in any way, on the facts of this case, for not making a formal order pursuant to s. 55 of the Act of 1985. This system may not be a very desirable one and it is one which clearly does not suit the plaintiff but in my view the effect of the Act of 1985 is clear in this regard. It cannot be said that the Minister was acting unfairly and unreasonably in failing to exercise his powers where in doing so he would not have been able to achieve anything further.

The plaintiff contends that the Minister showed only a sporadic interest in introducing a scheme and that he failed to apply sufficient pressure on the Dental Council in 1993, particularly when he came close to achieving a result. The plaintiff contends that the Minister, for the following six years, completely abandoned the need to introduce a scheme and further failed to maintain any pressure on the Dental Council for this purpose. The plaintiff contends that the suggestion that the Minister pursued an alternative health strategy during this period is wholly unsustainable.

I am quite satisfied on the evidence that there was in fact nothing further that the Minister could do to bring about a scheme which he could consent to pursuant to the provisions of the Dentists Act, 1985.

Accordingly I come to the conclusion that the Minister in exercising his discretion and his powers pursuant to the provisions of the Dentists Act, 1985 did so fairly and reasonably.

The Constitutional Issue

The plaintiff claims that his right to earn a livelihood pursuant to Article 40.3 of the Constitution has been infringed by the defendants. The plaintiff rests his claim on the absence of a scheme. He does not dispute that the practice of denturism must be regulated but attacks the absolute ban on the legal practice of denturism which is in place as a consequence of the absence of a scheme. The plaintiff asserts that it is not necessary for the Court to make a finding as to fault but to simply conclude that in the absence of a scheme there has been an infringement of the plaintiff's constitutional right to earn a livelihood.

I have found that the Dental Council and the Minister did exercise their respective discretion fairly and reasonably. The constitutional issue has to be considered in the light of these findings.

The plaintiff's main contention is that the State has failed to respect and as far as practicable by its laws, to defend and vindicate the plaintiff's constitutional right to earn a livelihood and that the first named defendant has infringed this right. The plaintiff alleges that the uncontroverted facts are as follows:

"1. Since 1981 the plaintiff has endeavoured to prepare for and follow his chosen career of practising as an independent denturist.

2. The Dentists Act, 1985 (referred to herein as the Act or the 1985 Act), provides in Part VII thereof for the making of a scheme which will enable persons including the plaintiff to practise as independent denturists.

3. The second named defendant has consistently held the view that there should be such a scheme.

4. Since at least 1993 the first named defendant has accepted, at least in principle, that there should be such a scheme.

5. All of the witnesses who gave evidence in the proceedings accepted that there should be such a scheme.

6. In the eighteen years since the enactment of the 1985 Act there has never been any such scheme."

The plaintiff acknowledges that the constitutional right to earn a livelihood is not an absolute right and may be subject to "legitimate legal restraints". (A.G. v. Paperlink [1984] I.R.L.M. 373). The plaintiff contends that against a background where the consensus is that there should be a scheme in place, the absence of a scheme does not in any way constitute a legitimate legal restraint on his constitutional right to earn a livelihood. The plaintiff does not in any way challenge the restraints which the Oireachtas had intended would be imposed on practising denturists by virtue of a scheme made under the Act of 1985, nor is the plaintiff challenging any provision of the Act of 1985.

Counsel for the plaintiff submits that having regard to the evidence which has been adduced, there are no factors rooted in the public interest or the common good which necessitate the absolute bar from practising as a denturist which the defendants have erected through their respective acts and omissions.

It is submitted on behalf of the Dental Council that there is no absolute bar on the fitting of dentures as this work can be carried out by a qualified dentist. The first named defendant refers to the fact that a similar position pertains in many other jurisdictions around the world and that the situation in Ireland, whilst not universal, is not at the same time unusual. Counsel further submitted that the plaintiff is perfectly free to make dentures but if he wishes to affix them to persons' mouths he must have the qualifications of a dentist and that the reality of the situation is that the plaintiff is seeking to work in an area in respect of which he is neither trained nor qualified and on the evidence it would not be safe for him to do so.

It is further urged on the first named defendant's behalf that any constitutional right enjoyed by the plaintiff is not an absolute one and is subject to legitimate legal restraint and that in balancing constitutional rights one has to have regard to competing rights and in particular the situation in this case where there is clear evidence of the serious health implications in the fitting of dentures by persons who are unqualified.

Counsel for the first named defendant refers to the fact that in circumstances where two schemes have been proposed then a consideration of their merits is unavoidable if the Court is to conclude that the Dental Council has acted in a manner which is not proportionate, having regard to whatever constitutional rights the plaintiff can assert. I am satisfied that it would be inappropriate for me to get involved in a discussion of the merits of the schemes as proposed.

Counsel for the second, third and fourth named defendants submit that the plaintiffs right to earn a livelihood is subject to legitimate legal restraint. Counsel submits that in circumstances where: (a) there can be no absolute and unfettered right to practice denturism, (b) the defendants have an obligation to ensure that the health of the public is adequately protected; (c) there is agreement as between the expert witnesses as to the range of training and knowledge which denturists ought to have; (d) the plaintiff himself is not disputing the provisions of the 2001 draft scheme as to qualifications and training but only complains about the absence of a grandfather clause; and (e) the plaintiff has adduced inadequate evidence to suggest that he has the required standard of knowledge and expertise, that no case has been made out for saying that insofar as the plaintiff is concerned, the restraint on his constitutional right to earn a livelihood has been subjected to anything other than legitimate legal constraints.

I take the view that there is in fact no absolute ban on the fitting of dentures in this jurisdiction. As matters presently stand, a dentist can engage in the fitting of dentures. I am quite satisfied on the evidence adduced, that the fitting of dentures does involve serious matters of public health and quite clearly there are risks attached, such as the risk of cross-infection and damage to adjacent teeth. It is also quite clear that a strong view has pertained around the world in relation to the issue of persons working as denturists and fitting dentures, and while different attitudes have been adopted, I take the view that it is fair to conclude on the evidence that there is a real basis for the necessity that persons who are going to fit dentures into people's mouths have adequate qualifications, training and experience. As matters presently stand, the only persons in this jurisdiction who are deemed to have the necessary requirements to fit dentures are dentists.

The constitutional right to earn a livelihood is not an absolute right. In Attorney General v. Paperlink Ltd [1984] ILRM 373 Costello J stated at p. 384:

"It seems to me to be inaccurate and potentially confusing to state without qualification that each citizen has the constitutional right to carry on the occupation in which he is actually earning his living. The defendants like all citizens have a constitutional right to earn a living: they may choose to exercise that right by doing manual or non-manual work, by entering a profession or by entering employment, by engaging in commerce (either alone or with orders), by manufacturing goods, providing a service, or engaging in agriculture. Their freedom to exercise this constitutional right is not an absolute one, however, and it may be subject to legitimate legal restraints."

It is clear that the constitutional right to earn a livelihood is not a right to earn a livelihood in whatever manner a person chooses. Obviously a person must be adequately qualified to do that work.

The plaintiff has the right to work as a dental technician provided he does not practice denturism but he in fact is seeking to work in an area where quite patently on the evidence he is neither trained nor qualified to do so, and on the evidence it is not safe for him to do so.

The plaintiff submits that the Dentists Act, 1985 provides in Part VII thereof for the making of a scheme which will enable persons including the plaintiff to practise as independent denturists. I do not accept that this is the position. I take the view that the Dentists Act, 1985 in Part VII thereof, gave the Dental Council a discretion in the matter to introduce a scheme, and no more, which could only come into effect with the consent of the Minister in accordance with the Act of 1985, and further that the Minister could call for the production of a scheme, the content of which was at the discretion of the Dental Council.

The plaintiff knew when he started to hold himself out as a denturist that he was acting in breach of the law. I am satisfied on the evidence that the plaintiff is not qualified to practise as a denturist.

I am satisfied that there is justifiable legitimate legal restraint in the public interest in respect of persons holding themselves out to practise as denturists for the obvious public health issues that arise. This is not a case dealing with bus drivers or persons wishing to act as couriers or a person who is improperly restrained from taking up employment which they are entitled to carry on as of right or in respect of which they meet the required standards and qualifications legitimately required to enable them to perform the duties required of such employment. The plaintiff does not dispute the proposition that it is necessary for persons such as the plaintiff to obtain the necessary training and qualifications to practise as a denturist, however the plaintiff contends that even if he had the requisite qualifications he could still not practise legally as a denturist by virtue of the absence of a scheme.

However there is no challenge by the plaintiff to the constitutionality of the relevant provisions of the Dentists Act, 1985 and accordingly in the situation that arises the plaintiff is seeking to enforce a constitutional right but does not challenge the legislation which controls the situation.

I am satisfied that the legislation does not mandate the introduction of a scheme and it does not require that the legal prohibition on persons other than dentists practising denturism be removed. The Act of 1985 simply provides for the possibility of persons other than dentists practising denturism. Furthermore, both the Dental Council and the Minister have acted reasonably and within their discretion and accordingly the evidence as adduced before me does not sustain an allegation that they, or either of them, have in some way infringed the plaintiff's constitutional right to earn a livelihood.

The only way that a scheme can be brought into being is on the basis of a proposal of a scheme by the Dental Council and the Minister giving his consent thereto. The legislature has specifically devised a process whereby the Dental Council propose and the Minister consents to a scheme and it must have been clearly envisaged that if agreement could not be reached between the two then in accordance with the provisions of the Dentists Act, 1985 there could be no scheme. Against this background, in the absence of a constitutional challenge to the provisions of the Dentist Act, 1985 and having regard to the fact that this Court is not in a position to direct the defendants to bring in a scheme, and in this regard I will expand on my reasons later, this Court cannot override the provisions of the Act of 1985 and accordingly the plaintiff's argument on the basis that simply because there is no scheme in place his constitutional rights have been infringed must fail.

Insofar as the plaintiff alleges that the second named defendant has in some way infringed the plaintiff's constitutional rights, I am satisfied that the relevant provisions of Dentists Act, 1985 specifically provide for the necessity of the second named defendant's consent to any scheme as advanced by the Dental Council. The Minister declined on both occasions to give his consent to either of the two schemes as advanced by the Dental Council and the plaintiff agrees with the Minister's decision in both cases. Working within the confines of the Dentists Act, 1985, I cannot see how the plaintiff's constitutional rights have been infringed by the second named defendant especially against the background where the plaintiff agrees with the second named defendant's decision in this regard.

In these circumstances, I reject the contention that because there is no scheme in place that enables the plaintiff to lawfully practise denturism the plaintiff's constitutional right to earn his livelihood has been infringed and I decline to grant the relief as sought in connection with an alleged breach of the plaintiff's constitutional right to earn his livelihood pursuant to Article 40.3 of the Constitution.

Alleged Breaches of Competition Law

Section 4(1) of the Competition Act, 2002 which re-enacts verbatim s. 4(1) of the Competition Act, 1991 provides that:

"[s]ubject to the provisions of this section, all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the State or in any part of the State are prohibited and void, including in particular, without prejudice to the generality of this subsection, those which-

(a) directly or indirectly fix purchase or selling prices or any other trading conditions

(b) limit or control production, markets, technical development or investment,

(c) share markets or sources of supply,

(d) apply dissimilar conditions to equivalent transactions with other trading parties thereby placing them at competitive disadvantage,

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which by their nature or according to commercial usage have no connection with the subject of such contracts."

Article 81 of the Treaty of Rome contains the same prohibition in the context of trade between member states.

Section 5(1) of the Competition Act, 2002 which re-enacts s. 5(1) of the Competition Act 1991 provides that: "[a]ny abuse by one or more undertakings of a dominant position in trade for any goods or services in the State or in any part of the State is prohibited …" Article 82 of the Treaty of Rome contains the same prohibition against the abuse of a dominant position again in the context of trade between member states.

The plaintiff submits that the second named defendant is an "association of undertakings" within the meaning of Article 4 of the Competition Acts, 1991 and 2002 and Article 81 of the EC treaty. It is no longer argued that the Minister is an undertaking under Irish and European Competition law, thus the plaintiff is no longer pursuing the argument that there was an agreement between undertakings contrary to competition law.

The term "association of undertakings" is not defined under either the Competition Acts 1991 or 2002 or under the EC treaty. Guidance can however be drawn from the case law on this issue particularly the European case law which is of persuasive influence in interpreting the Irish legislation. In Donovan v. ESB [1994] 2 I.R. 305 Costello J. concluded that the Association of Electrical Contractors of Ireland, the Electrical Contractors Association of Ireland and the Register of Electrical Contractors of Ireland Ltd. were associations of undertakings within the meaning of the Competition Act, 1991. These bodies were however considerably different to the Dental Council. The Register of Electrical Contractors of Ireland Ltd. was a limited company described by Costello J. at p. 321 as a "voluntary self-regulating body for the industry". The other two bodies were trade associations which were members of the company in question.

In contrast the Dental Council is a public body established under statute by the Dentists Act, 1985. Section 6 provides that "…the general concern of [the Council] shall be to promote high standards of professional education and professional conduct among dentists, and [the Council] shall, in particular, fulfil the functions assigned to it by this Act." The various functions bestowed on the council by the Act include the establishment of a register of dentists under s. 26 of the Act. Under s. 29 the Council may also, with the consent of the Minister, prepare a register of Dental Specialists.

Section 34 requires the Council to satisfy itself as to the suitability and standards of education and training of dentists. The legislation also requires the Council to set up a Fitness to Practise Committee pursuant to s. 13(2)(b) and Part V of the Act gives the Council certain powers in respect of dentists brought before this committee including the power to erase from the register a person found guilty of professional misconduct.

Section 66 bestows certain advisory functions on the Council; it must inter alia, inform the public on all matters of the general interest relating to the functions of the Council and give guidance to the dental profession generally on all matters relating to ethical conduct and behaviour and advise the Minister on its functions under the act.

These provisions illustrate that the Dental Council is a public body concerned with the regulation of education and standards in the dental industry rather than a trade association which represents the private commercial interests of dentists. It is not in engaged in an economic activity. The Council exercises its functions not for the benefit of the dentists but in the public interest. In this respect it can be contrasted with a professional association such as the Irish Dental Association whose role is inter alia to represent the interests of its members. Dentists simply register with the Council under the terms of the Act of 1985, they are not members of the Council.

In Phillips v. The Medical Council [1991] 2 I.R. 115 Costello J. described the status of the Medical Council, a body established in a similar way and with similar functions, including the maintenance of a register of medical practitioners and the maintenance of proper standards of medical education and training, in the following way at p.119: "The Council is not a body established to manage the affairs of the medical profession or to protect its interests; it is a statutory body entrusted with important statutory functions to be performed in the public interest." Likewise the function of the Dental Council is not to protect the interests of dentists but to perform the functions assigned to it under the Act of 1985 in the public interest. Accordingly, the Dental Council is not an association of undertakings within the meaning of s. 4 of the Competition Acts 1991 and 2002, nor Article 81 of the Treaty.

The plaintiff relies on the decision of the European Court of Justice in the case of Wouters v. Algemene Raad van de Nederlandse Orde van Advocaten Case C-309/99 [2002] ECR I-1577 which, inter alia, concluded that the Dutch Bar constituted an "association of undertakings". However that case can be distinguished from the present one on a number of grounds.

The case concerned the Bar of the Netherlands which is regulated by statute, the Advocatenwet (the Law on the Bar). A 1993 regulation adopted by the Bar under this Act regulates partnerships between members of the Bar and members of other professions. The ECJ considered whether the Bar of the Netherlands was an association of undertakings within the meaning of Article 85(1), (now Article 81(1)), in adopting such a regulation. In order to consider this question the Court first had to determine whether the members of the Bar were undertakings within the meaning of the Treaty. The Court concluded that the members of the Bar carried on an economic activity, the provision of services in the form of legal assistance for a fee, and accordingly were undertakings. Citing the case of Pavlov and Others [2000] ECR I-6451 the Court noted that the complexity and technical nature of the services they provided and the fact that the practice of their profession was regulated could not alter that conclusion. It is clear that under this definition individual dentists would constitute undertakings.

The ECJ then considered whether the Bar of the Netherlands was an association of undertakings. At para. 57 the court stated that: "According to the case-law of the Court, the Treaty rules on competition do not apply to activity which, by its nature, its aim and the rules to which it is subject does not belong to the sphere of economic activity". However it went on to find at para. 58 that:

"When it adopts a regulation such as the 1993 Regulation, a professional body such as the Bar of the Netherlands is neither fulfilling a social function based on the principle of solidarity, unlike certain social security bodies (Poucet and Pistre, cited above, paragraph 18), nor exercising powers which are typically those of a public authority (Sat Fluggesellschaft, cited above, paragraph 30). It acts as the regulatory body of a profession, the practice of which constitutes an economic activity.

In that respect, the fact that Article 26 of the Advocatenwet also entrusts the General Council with the task of protecting the rights and interests of members of the Bar cannot a priori exclude that professional organisation from the scope of application of Article 85 of the Treaty, even where it performs its role of regulating the practice of the profession of the Bar (see, to that effect, with regard to medical practitioners, Pavlov, cited above, paragraph 86)."

Accordingly it is clear that the fact that a body has a regulatory function will not prevent a finding that it is also an association of undertakings. In this respect it is important to consider the nature of the activity in question in order to determine whether the body is acting as an association of undertakings in the performance of that particular function. Specifically, it must be asked whether the activity in question falls within the sphere of economic activity. I am satisfied that the functions of the Dental Council under the Dentists Act and in particular the making of a scheme for a class of dental auxiliary worker under s. 53 of the Act of 1985 do not fall within this sphere. The functions are simply of a regulatory nature.

The ECJ went on to consider other indications to support the conclusion that a professional organisation such as the Bar of the Netherlands was an association of undertakings in making such a regulation. At para. 61 it noted that the governing bodies of the Bar were composed exclusively of members of the Bar elected solely by members of the profession. The Dental Council is not composed exclusively of dentists. Of the nineteen members of the Council s. 9 of the Act of 1985 provides that at least two shall not be registered dentists and that at least two shall represent the interests of the general public as consumers of dental services. Between 1985 and 1990 only six out of the 19 members of the Council were dentists practising in private practice.

The ECJ then noted at para. 62 that when adopting measures such as the 1993 regulation the Bar of the Netherlands was not required to do so by reference to specific public-interest criteria, the Advocatenwet did no more than require that they should be in the interest of the "proper practice of the profession". The composition of the Dental Council by contrast is specifically designed to ensure that the interests of the general public are represented.

At para. 63 the Court stated that: "Lastly, having regard to its influence on the conduct of the members of the Bar of the Netherlands on the market in legal services, as a result of its prohibition of certain multi-disciplinary partnerships, the 1993 Regulation does not fall outside the sphere of economic activity." It is clear that the economic nature of the regulation in question was of importance in the Court's finding that the bar was an association of undertakings. By contrast the making of a scheme for auxiliary dental workers does not fall within the sphere of economic activity but rather is the exercise of a power in the interests of public health.

As the Dental Council is not an association of undertakings the claim under s. 4 of the Competition Acts 1991 and 2002 and under Article 81 cannot succeed.

In light of the finding that the Dental Council is not engaged in an economic activity I am also satisfied that the Dental Council is not an undertaking within the meaning of Articles 81 and 82 of the Treaty of Rome nor is the Dental Council "engaged for gain in the production, supply or distribution of goods or the provision of a service" within the meaning of s. 3 of the Competition Acts, 1991 and 2002. Accordingly the plaintiff's claim under s.5 of the Competition Acts and under Article 82 is also rejected.

In addition I am satisfied that the claim under Article 86 of the Treaty against the State must also fail as it is also a pre-requisite to the application of the Article that the Dental Council is an undertaking. Article 86 applies to measures concerning "public undertakings and undertakings to which Member States grant special or exclusive rights".

Furthermore Article 86 does not have an independent application, but can be applied only in conjunction with a breach of another Treaty Article. Article 86(1) requires Member States to refrain from enacting or maintaining in force any measure contrary to the Treaty, and in particular one which would contravene Article 12, Article 81 or Article 82. The plaintiff has not demonstrated what measure contrary to Article 81 or 82 the Minister has enacted or maintained in force.

The plaintiff also submits that the Minister is in breach of Article 10 of the EC Treaty which obliges member states to refrain from any measures which could jeopardise the attainment of the objectives of the Treaty and to facilitate the achievement of the Community's tasks. The application of Article 10 depends in this case on a finding that there has been anti-competitive behaviour under Article 81 or 82, and in my view such a case has not been made out. Accordingly I decline to grant the reliefs as sought in connection with the European Treaty and the Competition Act 2002.

The reliefs sought

It was agreed between the parties that the reliefs as sought pursuant to paras. (g), (h) and (i) relating to damages be left over pending the determination of the substantive issues between the parties.

I have already dealt with and concluded the constitutional aspect of the plaintiff's claim, and the claims pursuant to the Treaty of Rome and the Competition Act 2002. In relation to the relief claimed at (c) as a matter of law I take the view that the plaintiff is not entitled to a declaration that he is entitled to exploit his profession or craft as a denturist by making, fitting and selling artificial dentures directly to the public. The plaintiff is neither a qualified denturist or a dentist and the provisions of the Dentists Act, 1985, the constitutionality of which is not disputed, and in particular s. 51 thereof provide that it shall not be lawful on or after the date of the passing of the Dentists Act, 1985 for any person to practise dentistry and dentistry as defined in s. 2 includes the performance of any operation or the giving of any treatment, advice or attendance on or to any person preparatory to, for the purpose of, or in connection with the fitting, insertion or fixing of artificial teeth.

The central thrust of the plaintiff's claim is to the effect that the defendants and each of them were in breach of their duties under the Dentists Act, 1985 and the principal reliefs as claimed are those as set out at paras. (e) and (f). The plaintiff seeks an order requiring the Dental Council to make a scheme pursuant to Part VII of the Dentists Act, 1985 and an order requiring the Minister to compel the Council to prepare a lawful scheme within such period as may be prescribed by this honourable court.

I have already come to the conclusion that the Dental Council in exercising its discretion did so fairly and reasonably. I have also come to the conclusion that in exercising his discretion to refuse to consent to the proposed 1993 and 2001 schemes the Minister also acted fairly and reasonably. Furthermore, I have come to the conclusion that it can not be said that the Minister was acting unfairly or unreasonably in failing to exercise his powers pursuant to s. 55 of the Act of 1985 as the Minister in my view has no power to direct the Dental Council as to the content of any proposed scheme. Accordingly I am satisfied that it is not open to the Minister to compel the Council to prepare a "lawful" scheme because the Minister has no role to play in the content of any proposed scheme and accordingly in my view it is not open to this Court to grant the relief as sought by way of the order sought at para. (f) of the reliefs as claimed and this relief is declined.

While I accept on the basis of the evidence adduced it is desirable that there be in place a regulatory scheme for the practice of denturism the matter has to be considered against a background where there is in place specific legislation prohibiting by law the practice of denturism as carried out by the plaintiff. The Oireachtas has provided for the possibility of the legal practice of denturism subject to a scheme being put forward by the Dental Council and being consented to by the Minister for Health. In accordance with the legislation as provided for in the Dentists Act, 1985 quite simply if the Minister does not consent to the scheme as put forward by the Dental Council such a scheme does not come into being. That quite clearly is the intention of the relevant legislation. The problem that arises in this case is that the Dental Council and the Minister are both entitled to the exercise of their discretion in the matter and they may well be coming to a conclusion in this regard from a different perspective and differing considerations. As long as they each exercise their discretion in accordance with the relevant provisions of the Dentists Act, 1985 fairly and reasonably, it would, in my view, be inappropriate for this Court to attempt in some way to interfere with or direct either of them in the exercise of their discretion. It is in my view clear on the evidence that the Dental Council and the Minister still maintain different opinions and differing considerations.

I take the view that it would be inappropriate for this Court to interfere in any way with the actual content of a proposed scheme or an appropriate scheme other than to ensure that if a relevant party has a discretion to exercise pursuant to statute that the exercise of that discretion is carried out fairly and reasonably. The content of the relief sought at para. (e) of the reliefs as claimed is directed against the Dental Council only. This Court could not order the Minister for Health to consent to a scheme as such an order would have the effect of fettering the Minister's discretion. The Dental Council cannot bring in a scheme on its own because pursuant to the relevant provisions of the Dentists Act, 1985 any scheme in the context of this case as proposed by the Dental Council is subject to the consent of the Minister.

If this Court were to make an order requiring the Dental Council to make a scheme pursuant to Part VII of the Dentists Act, 1985 in a manner which is consistent with the provisions of the Act, the European Treaty, the plaintiff's constitutional rights, and which does not offend the provisions of the Competition Act, 2002 in respect of the category of work known as auxiliary dental workers, such an order would necessarily imply that such a scheme as directed would come into being if the order was to be complied with. If such an order were made, if would in my view be unenforceable because the exercise by the Dental Council of its discretion to propose the content of a scheme and the requirement of the Minister's consent are inexorably intertwined before any scheme can be brought into being. In my view for this Court to attempt to force the introduction of a scheme which is what the plaintiff is seeking would amount to an unwarranted and unconstitutional interference with the powers of government which are exclusively conferred on the executive and the Oireachtas. The sole and exclusive power for making laws is vested in the Oireachtas and it is for the Oireachtas to legislate for the regulatory framework in which denturists may provide their services. Accordingly I decline to grant an order requiring the Dental Council to make a scheme pursuant to Part VII of the Dentists Act, 1985.

I decline to grant the reliefs as sought against the defendants and I dismiss the plaintiff's claim.