Kenny T/A Denture Express v Dental Council and Others

JurisdictionIreland
JudgeGilligan J.
Judgment Date27 February 2004
Neutral Citation[2004] IEHC 29
Docket Number1538p/1998
CourtHigh Court
Date27 February 2004

[2004] IEHC 29

THE HIGH COURT

1538p/1998
KENNY T/A DENTURE EXPRESS v. DENTAL COUNCIL & ORS

BETWEEN

MARTIN KENNY TRADING AS DENTURE EXPRESS
PLAINTIFF

AND

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

Citations:

DENTISTS ACT 1928 S1

DENTISTS ACT 1928 S45(1)

RESTRICTIVE PRACTICES ACT 1972 SCH III A

RESTRICTIVE PRACTICES ACT 1972 SCH III G

DENTISTS ACT 1928 S45

DENTISTS (AMDT) ACT 1983

DENTISTS ACT 1985 S6

DENTISTS ACT 1985 S2

DENTISTS ACT 1985 S51

DENTISTS ACT 1985 S53

DENTISTS ACT 1985 S54

DENTISTS ACT 1985 S55

CONSTITUTION ART 40.3

COMPETITION ACT 2002 S4(1)

DENTISTS ACT 1985 PART VII

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

CRAIES ON STATUTE LAW 1971 7ED 65

NESTOR V MURPHY 1979 IR 326

DPP (IVERS) V MURPHY 1999 1 IR 98

PEPPER V HART 1992 3 WLR 1035 1993 AC 593

DENTISTS ACT 1985 S53(2)

RAFFERTY V CROWLEY 1984 ILRM 350

BUILDING SOCIETIES ACT 1976 S80

DENTISTS ACT 1985 S55(1)

SHEEHAN, STATE V GOVERNMENT OF IRELAND 1987 IR 550

CIVIL LIABILITY ACT 1961 S60

CIVIL LIABILITY ACT 1961 S60(7)

JULIUS V BISHOP OF OXFORD 1880 5 AC 214

DUNNE, RE 1968 IR 105

INTOXICATING LIQUOR ACT 1960 S19(2)

DENTISTS ACT 1985 S54(3)

BAKHT V THE MEDICAL COUNCIL 1990 ILRM 840 1990 1 IR 515

MEDICAL PRACTITIONERS ACT 1978 S27(2)(D)

MEDICAL PRACTITIONERS ACT 1978 S27

EAST DONEGAL COOPERATIVE V AG 1970 IR 317

KENNEDY V LAW SOCIETY OF IRELAND (NO 3) 2002 IR 458

DEANE V VOLUNTARY HEALTH INSURANCE BOARD (VHI) 1992 2 IR 319

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

CASSIDY V MIN INDUSTRY 1978 IR 297

HAY V O'GRADY 1992 1 IR 210

DENTISTS ACT 1985 S9

DENTISTS ACT 1985 S15

DENTISTS ACT 1985 S9(1)

DENTISTS ACT 1985 S9(1)(F)

DENTISTS ACT 1985 S9(2)

DENTISTS ACT 1985 S15(1)

DENTISTS ACT 1985 S15(2)

AG V PAPERLINK 1984 ILRM 373

COMPETITION ACT 1991 S4(1)

TREATY OF ROME ART 81

COMPETITION ACT 2002 S5(1)

TREATY OF ROME ART 82

COMPETITION ACT 1991 S4

DONOVAN & ORS V ESB & ANOR 1997 3 IR 573

DENTISTS ACT 1985 S26

DENTISTS ACT 1985 S29

DENTISTS ACT 1985 S34

DENTISTS ACT 1985 S13(2)(B)

DENTISTS ACT 1985 PART V

DENTISTS ACT 1985 S66

PHILLIPS V MEDICAL COUNCIL 1991 2 IR 115

WOUTERS V ALGEMENE RAAD VAN DE NEDERLANDSE ORDE VAN ADVOCATEN 2002 ECR I-5777

TREATY OF ROME ART 85(1)

TREATY OF ROME ART 81(1)

PAVLOV & ORS 2000 ECR I-6451

COMPETITION ACT 1991 S3

COMPETITION ACT 2002 S3

COMPETITION ACT 2002 S5

TREATY OF ROME ART 86(1)

TREATY OF ROME ART 12

TREATY OF ROME ART 10

DENTISTS ACT 1985 S2

Abstract:

Competition law - Administrative law - Statutory duty - Auxiliary dental workers - Statutory power to establish scheme to regulate practice of denturism - Legislative interpretation - Whether mandatory obligation to establish scheme - Whether defendants acted reasonably and fairly in exercising powers -Constitutional right to earn a livelihood - Whether plaintiff's right infringed - Whether breaches of competition law - Dentists Act 1985

Facts: The Dentists Act 1985 prohibited the practice of dentistry other than by registered dentists. The Act, however, provided for the establishment of a scheme for auxiliary dental workers but no such scheme had been established. The plaintiff worked as a denturist which involved him engaging in the design and fitting of dentures. He made the case that under the legislation there should be a scheme in place to regulate and legalise the practice of denturism and that the defendants had failed to act reasonably and fairly in the exercise of their powers. He sought, inter alia, declarations that the defendants had failed to vindicate his constitutional right to earn a livelihood and that the defendants were in breach of the Competition Act 2002 and orders requiring the defendants to prepare a lawful scheme for the regulation of denturists.

Held by Gilligan J. in refusing to grant the reliefs sought that the provisions of the Act of 1985 did not impose a mandatory obligation on the defendants to bring in a scheme. The defendants did not act unreasonably or unfairly in the exercise of their statutory powers under the Act. Given the serious matters of public health involved, there was a justifiable legal restraint in the public interest in respect of persons authorised to fit dentures. There was no breach of competition law.

This case is under appeal.

Reporter. R.W.

1

Gilligan J. on the 27th day of February, 2004

2

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.

3

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.

4

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.

5

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.

6

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.

7

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.

8

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 month. The plaintiff does use a drill to alter the dentures he is placing in the patient's month 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.

9

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.

10

Section 1 of the Dentists Act, 1928provided 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."

11

Section 45 of the Dentists Act, 1928insofar 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."

12

The effect of the Dentists Act, 1928made 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.

13

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.

14

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...

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