Teeth Whitening Prosecutions

In recent years there has been a surge in the number of people seeking to brighten their smile by having teeth whitening treatment.

A lot of people are under the impression that such treatments are entirely cosmetic and can therefore be performed by beauty therapists. Indeed there are several teeth whitening training courses specifically targeted at those working in the beauty industry.

In actual fact a High Court ruling (GDC v Jamous [2013] EWHC 1428) has confirmed that teeth whitening is the practise of dentistry and can only be performed by dental practitioners correctly registered by the General Dental Council (GDC).

The GDC is pretty ruthless when it comes to prosecuting teeth whitening practitioners without the correct qualifications and registration. The Council's interest is two fold: firstly it wants to protect the livelihoods of the (impoverished) registered dental practitioners that line its coffers; secondly it wants to safeguard public health by preventing laypeople from using potentially dangerous chemicals in the mouths of their customers.

The bleaching agents used by beauty therapists, which often contain hydrogen peroxide, are many times stronger than those found in over the counter teeth whitening kits. The Council is seriously concerned that a customer being treated by a layperson could have a severe allergic reaction to those chemicals and the layperson in question would not have the medical wherewithal to deal with the situation.

The Dentists Act 1984 creates the following offences:

• Section 38 of the Act makes it a criminal offence for anyone who is not registered with the GDC to practise dentistry or to offer or imply they are prepared to practise dentistry.
• Section 37 of the Act explains that practising dentistry means providing or offering to provide the treatment, advice or attendance that would usually be given or performed by a dentist.
• Section 39 of the Act makes it a criminal offence for anyone who is not registered with the GDC to take or use various protected dental titles, such as 'dentist', 'dental nurse', 'dental hygienist' 'dental technician' or to imply that they are a registered dental professional.
• Sections 40 and 41 of the Act sets out that it is a criminal offence for an individual who is not registered with the GDC to receive payment for dental treatments or advice.

These are summary offences which can only be dealt with at the Magistrates' Court. The maximum penalty for these offences is an unlimited fine. It would be entirely reasonable to say that most defence advocates are unfamiliar with this particular legislation. There are no Sentencing Guidelines when it comes to imposing penalties for these offences, so Magistrates' tend to be guided by whatever the GDC prosecutor infers.

A recent prosecution in the Scottish Sheriff Court has brought the topic of illegal teeth whitening back into focus.

Brenda McFadyen, from Clydebank, was fined £1,000 after she pled guilty to the illegal practice of dentistry at Glasgow Sheriff Court last month. The first she knew of the legislation, so she says, was when the police knocked on her door earlier this year.

As chance would have it, I observed the GDC prosecuting a case in England earlier this year. In that case a beauty therapist, who was a sole trader with her own business, made it known on Facebook that she was willing to perform teeth whitening treatments. The GDC picked up on the advert and sent an email warning her that teeth whitening was the practise of dentistry and she would be committing an offence if she continued to do so.

A couple of months later the GDC received a report from the local council trading standards office that the lady in question, who had attended one of these unaccredited teeth whitening training courses, was still offering the service.

An undercover GDC investigator got in touch with the beauty therapist, posing as a teeth whitening customer. An appointment was arranged and the investigator, along with a partner, travelled several hundred miles from London to attend. On arrival at the appointment the investigators played along with the beauty therapist until it was clear that she was about to begin the procedure. It was at that point that they identified themselves as GDC investigators and left the premises.

The case was heard at the local Magistrates' Court and the facts outlined exactly as described above. The lady in question admitted the offence and was fined, if memory serves, £1,000. There was an audible gasp in the courtroom when the GDC prosecutor asked for £1,000 towards prosecution costs, explaining that the investigation had required several long train journeys and hours of background work. The bench actually ordered a partial contribution towards costs of £400. Remember that there are no Sentencing Guidelines for offences under the Dental Act 1984, so the court has to make a gut decision when sentencing.

The message is that if you're wanting your teeth whitened, you should ensure that you choose a dental practitioner correctly registered with the GDC. You can check the registration of dental practitioners here.