A man who operates a business of making and fitting dentures has lost his High Court challenge over the failure to enact a scheme to allow him practise legally as a "denturist".
Mr Justice Gilligan noted that, despite requests over several years from a number of ministers for health to the Dental Council to submit schemes for denturists, the council had failed to draft any scheme which any minister had approved.
It was clear from the outset that the council was not amenable to the idea of exercising its discretion to introduce a scheme for denturists, the judge added.
The judge said there was no doubting the bona fides of the council in proposing in 2001 and 1993 a scheme which did not include recognition for persons who had carried on business as denturists for many years while not being registered dentists.
It was reasonable to conclude that it would be irresponsible of the council to compromise in any way the quality of denturists' training given the public expectation of trust in healthcare professionals and the potential for harm to patients. While he accepted on the evidence that it was desirable to have a regulatory scheme for the practice of denturists, the problem was that both the Dental Council and the Minister had discretion in this regard and might well be coming to a conclusion from a different perspective and different considerations.
In light of that discretion, it would be a breach of the constitutional separation of powers for the court to order that such a scheme be made.
Given that and other findings, the judge dismissed proceedings taken by Mr Martin Kenny, described as a "denturist" and trading as Denture Express, of Lower Dorset Street, Dublin, against the Dental Council, the Minister for Health and Children, and the State.
Under the Dentists Act, 1928, any person other than registered dentists who undertakes dental work is committing an offence. It is illegal for persons other than a registered dentist to work as a denturist dealing directly with the public.
Mr Kenny (39) did a four-year dental craftsman apprenticeship in Dublin from 1981, and subsequently worked as a dental technician. He set up his own business in 1988.
He became a member of the Irish Association for Denture Prosthesis (IADP) and obtained a certificate in denturism after completing a one-year course for dental technicians run by the IADP at the then Dundalk RTC in 1991.
Mr Justice Gilligan said Mr Kenny had been practising successfully as a denturist and would see on average 400-500 patients a year. In 2002, his income was some €240,000.
He found the one-year RTC course completed by Mr Kenny did not amount to adequate training and would not form the basis for safe or effective treatment of patients. He was also satisfied Mr Kenny was not a qualified denturist.
The judge noted that the Restrictive Practices Commission had in 1979 recommended that the ban on non-dentists carrying out dental work be removed in relation to work fitting dentures.
However, the Dentists Act, 1985, under which the Dental Council was set up, maintained the ban on the carrying out of dentistry by persons other than registered dentists. Section 53 of the Act did state that the council might, with the consent of the Minister, make a scheme for establishing classes of auxiliary dental workers who could undertake certain classes of dental work as specified by the council. No such scheme had been made to regulate the practice of denturism.
Mr Kenny had said there should be such a scheme. The council brought forward schemes in 1993 and 2001, neither of which provided for the practice of denturism or created a class of auxiliary dental workers.
