General Dental Council v Jamous

For the purposes of Dentists Act 1984, the question whether treatment constitutes the practice of dentistry is whether it is usually performed by dentists. That question is assessed in the professional and regulatory context of the statutory scheme. Treatment commonly performed by untrained persons in domestic or unregulated settings is irrelevant. Evidence of risks, professional guidance and the circumstances in which treatment is offered may together establish the statutory test, but no single source is necessarily conclusive. The statutory test is sufficiently certain for the purposes of article 7 of the European Convention on Human Rights.

The General Dental Council appealed by way of case stated from a decision of Westminster Magistrates’ Court concerning a private prosecution of a person who offered cosmetic tooth-whitening treatment. The magistrates’ court considered that the evidence did not establish that tooth whitening was usually performed by dentists and that the statutory meaning of “usually” required a wider comparison with activities generally performed in society. The Divisional Court considered the proper construction of section 37 of the Dentists Act 1984, the sufficiency of the evidence and an article 7 challenge.

1. Appeal allowed. The questions posed in the case stated were answered “no”. The case was remitted to the magistrates’ court for sentence, and prosecution costs were ordered out of central funds.
2. Section 37(1) of the Dentists Act 1984 is not a complete definition. It identifies treatment included within the practice of dentistry by asking whether the treatment is usually performed by dentists. The statutory question must be understood in the context and purpose of the provision, including professional training, education, discipline and public protection.
3. Evidence that tooth whitening involved risks and possible complications was relevant because it tended to show that training was required, but it was not conclusive. The General Dental Council’s scope-of-practice guidance was also evidence of what dentists were trained and accredited to do. The guidance was not statutory and was not decisive. Its references to activities outside section 37 showed that the mere inclusion of an activity was insufficient.
4. The relevant circumstances had to be considered as a whole. It was irrelevant that untrained and unregulated persons might perform the treatment on themselves or others in a domestic context. It was also irrelevant whether dentists had historically performed it. If the evidence established that dentists usually performed the treatment, the statutory test was satisfied.
5. The combined evidence of the expert, the guidance and the undisputed circumstances in which the treatment was offered proved that the defendant was practising dentistry. The treatment therefore contravened sections 38 and 40. Section 37 supplied an ascertainable test to be applied to the facts, so its operation did not offend article 7 of the European Convention on Human Rights.

• High Court (Administrative Court): allowed the appeal by case stated from Westminster Magistrates’ Court and remitted the case for sentence.