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On what grounds was she discriminated against?
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Actually, HPV can cause mouth cancers.Peregrinus wrote: »But, short answer: no, this isn't normal. Having had gay sex - or any kind of sex - has no implications for dental health.
Not necessarily, as there would be a follow up conversation / assessment.drunkmonkey wrote: »That doesn't make sense, how can the group least at risk be the most dangerous. Surely if a man answers yes to the question then there in the most dangerous group.0 -
hullaballoo wrote: »If it was wilful and borne out of malice, the damages should be markedly higher again.
I don't think excusing the wrong as being a matter of ignorance is in any way defensible from a societal perspective.
I feel that there are certain types of person for whom ignorance is absolutely not excusable. Ie professionals who should not be ignorant.
Earlier in the thread I posited the idea that maybe there should be specialist clinics with high level of equipment to prevent the risk of spread of contagious disease.
This was rightfully rebutted by people with more knowledge of the facts than I have. A dentist is supposed to have this knowledge as its his specialist field where he receives training and is qualified in.0 -
hullaballoo wrote: »If it was wilful and borne out of malice, the damages should be markedly higher again.
I don't think excusing the wrong as being a matter of ignorance is in any way defensible from a societal perspective.
It's definitely not defensible in the case of a medical professional - and as such, my own opinion is that it should be referred separately to the Dental Council.
She got a payout for discrimination. I dont believe it was discrimination, it seems to me it was a poor, obtuse and tactless decision made out of ignorance, with no grounding in medicine, and so she deserves an apology. The fact that the dentist was ignorant of things he should have known about HIV should be reason to refer him to the Dental Council, who can determine if his practise should be closed until they are satisfied he's made himself more informed about the precautions around preventing the spread of disease.
It might seem much of a muchness, but I do think she would be entitled to some sort of compensation with the apology, but not on the grounds of discrimination, as claimed. And ten grand therefore seems excessive. He will have trouble getting insured after this, meaning he may no longer be able to practise, awareness-training or no awareness-training.
That's just my own view. The award isn't constructive, the appropriate place to take this complaint should have been the Dental Council or the appropriate regulatory body, with an apology to the lady and some compensation for her trouble, not discrimination.0 -
drunkmonkey wrote: »If it's infections and they have no experience of proper procedures in dealing with someone with it absolutely yes they should be able to say no.
There is blood involved, I assume if HIV blood mixes with yours it could mean trouble.
I could be wrong and you can't transfer it by mixing blood, I haven't looked it up it's just an assumption I've held for as long as I can remember. Probably just like the dentist.
Don’t you understand that HIV+ people (or people with HepC or multiple other afflictions) need to disclose their condition to appropriately qualified medical personnel who need to be competent enough to take adequate orecautions when dealing with such a patient.
The dentist is not only crass, unfeeling but sufficiently incompetent that he didn’t trust his own abilities.0 -
The dentist is not only crass, unfeeling but sufficiently incompetent that he didn’t trust his own abilities.
It sounded like they hadn't been educated on it or had forgotten their training. It's not a dose of the sniffles it kills people here every year. Crass and feeling don't come into the decision. There is no indication they did.
If in doubt don't proceed that's what seems to have happened and it was the right decision. I did not see any discrimination. Would it be right to proceed when your not sure what to do, definitely not.0 -
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I have only now read the report; I have difficulty understanding why the dentist’s name has not been published. I have difficulty in seeing how an Equality Commission case has preceded and not a health professions regulatory one, whether Dental Council or other.0
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So you want to do even more damage to the dentist on top of the fine, staff training costs, letter of apology and spanking by the dentist council.
Was it Bernard Shaw said, put an Irish man on a spit and the he's fellow Irish man will rotate him or something along those lines.
He was dealing with a killer disease. It's absurd it even ended where it has.0 -
I have only now read the report; I have difficulty understanding why the dentist’s name has not been published. I have difficulty in seeing how an Equality Commission case has preceded and not a health professions regulatory one, whether Dental Council or other.
The Dental Council can only investigate an allegation of professional misconduct where there is a question of fitness to practise, I'm not so sure a breach (intentional or accidental) of the Equal Status Acts would in and of itself warrant a fitness to practise investigation. No other body such as the Medical Council has statutory authority to investigate a dentist.
Also they can't investigate any complaint where compensation is sought like for example under the Equal Status Act.0 -
The Dental Council can only investigate an allegation of professional misconduct where there is a question of fitness to practise, I'm not so sure a breach (intentional or accidental) of the Equal Status Acts would in and of itself warrant a fitness to practise investigation. No other body such as the Medical Council has statutory authority to investigate a dentist.
Also they can't investigate any complaint where compensation is sought like for example under the Equal Status Act.
He unnecessarily subjected the patient to an anaesthetic and then decided not to proceed. That indicates at least a significant failure of care.0 -
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drunkmonkey wrote: »It sounded like they hadn't been educated on it or had forgotten their training. It's not a dose of the sniffles it kills people here every year. Crass and feeling don't come into the decision. There is no indication they did.
If in doubt don't proceed that's what seems to have happened and it was the right decision. I did not see any discrimination. Would it be right to proceed when your not sure what to do, definitely not.
A medical professional is required to stay abreast of current procedures. Even in the event that he had qualified pre 1985 this would have required him to be able to deal with this case. There are limited sharps used in dental surgery meaning much less significant potential to pierce the dentist’s skin. It is either a case of professional incompetence or outright crassness. A medical professional is required to treat the patient in front of them. In this case they anaesthetised the patient and the chose not to proceed. It is either incompetence or crass. There is no excuse of “I don’t have the basic skills”.0 -
The Dental Council can only investigate an allegation of professional misconduct where there is a question of fitness to practise, I'm not so sure a breach (intentional or accidental) of the Equal Status Acts would in and of itself warrant a fitness to practise investigation. No other body such as the Medical Council has statutory authority to investigate a dentist.
Also they can't investigate any complaint where compensation is sought like for example under the Equal Status Act.
This is partly correct. A refusal to provide treatment and/or discrimination of this type will be investigated by the Dental Council Fitness to Practice Commitee, this commitee also has an ethics sub-committee which will no doubt have an opinion. Dentists are issued with Professional Behaviour and Ethical Conduct codes of practice which must be abided by. While the Dentist is unlikely to face harsh penalties, I suspect some requirement will be put in place to improve his/her understanding of communicable diseases and the ethical responsibilities which must be adhered to.0 -
drunkmonkey wrote: »
If in doubt don't proceed that's what seems to have happened and it was the right decision. I did not see any discrimination. Would it be right to proceed when your not sure what to do, definitely not.
There is a difference between not knowing what to do, and deciding not to do it. Every qualified dentist knows how to practice safe cross infection control protocols, they are required every minute of every day. Every dentist knows how to treat a patient with an infectious, communicable disease, you treat them the same as every one else. You practice the exact same cross infection protocols.
Deciding not to treat someone is not only unprofessional, it is unethical. Health care workers are used to this, we don’t get to chose.0 -
This is partly correct. A refusal to provide treatment and/or discrimination of this type will be investigated by the Dental Council Fitness to Practice Commitee, this commitee also has an ethics sub-committee which will no doubt have an opinion. Dentists are issued with Professional Behaviour and Ethical Conduct codes of practice which must be abided by. While the Dentist is unlikely to face harsh penalties, I suspect some requirement will be put in place to improve his/her understanding of communicable diseases and the ethical responsibilities which must be adhered to.
There is no statutory footing for the Code, nor is there statutory authority to investigate any breach of the Code, it's a non mandatory guide.
The Ethics Committee is a Sub-Committe of the Education and Training Committee, not the Fitness to Practice Committee.0 -
There is no statutory footing for the Code, nor is there statutory authority to investigate any breach of the Code, it's a non mandatory guide.
The Ethics Committee is a Sub-Committe of the Education and Training Committee, not the Fitness to Practice Committee.
That is interesting, the Dental Council website states “The Fitness to Practice committee has an ethics sub-commitee”, Granted the paragraph on the website is poorly written.
http://www.dentalcouncil.ie/committee.php
Part V of the 1985 Dentists Act allow The Council or any person may apply to the Fitness to Practise Committee for an inquiry into the fitness of a registered dentist to practise dentistry on the grounds of—
(a) his alleged professional misconduct, or
The Act is not exhaustive in outlining what constitutes professional misconduct, that is for the Committee to consider. Hearings have been held into Dentists who have not adhered to the Code of Ethics. Refusing a patient in need of treatment on the grounds of disability or not following cross infection control protocols it could be alleged, is misconduct. It would be for the Committee to decide.
From Code of Practice relating to: Professional Behaviour and Ethical Conduct.
Guiding principle of the Code
Section 66 of the Dentists Act 1985 requires the Dental Council to guide the dental profession on everything to do with ethical conduct and behaviour. As a practising dentist, we expect you to meet the highest standards of professional practice and behaviour and to uphold the good reputation of the profession in the community.
If you fail to comply with this guidance, it may result in fitness to practise proceedings being taken against you under the Dentists Act 1985
http://www.dentalcouncil.ie/files/Professional%20Behaviour%20and%20Ethical%20Conduct%20-%20final%20-%20%2020120116.pdf0 -
That is interesting, the Dental Council website states “The Fitness to Practice committee has an ethics sub-commitee”, Granted the paragraph on the website is poorly written.
http://www.dentalcouncil.ie/committee.php
I was under the impression that it came under the Education and Training Committee, but perhaps that is correct.Part V of the 1985 Dentists Act allow The Council or any person may apply to the Fitness to Practise Committee for an inquiry into the fitness of a registered dentist to practise dentistry on the grounds of—
(a) his alleged professional misconduct, or
The Act is not exhaustive in outlining what constitutes professional misconduct, that is for the Committee to consider. Hearings have been held into Dentists who have not adhered to the Code of Ethics. Refusing a patient in need of treatment on the grounds of disability or not following cross infection control protocols it could be alleged, is misconduct. It would be for the Committee to decide.
This is a major problem with the Dentists Act 1985 in not defining what professional misconduct is, the Dentists Council have no statutory authority to:-
(a) interpret legislation i.e the meaning of professional misconduct
(b) produce a mandatory code, and
(c) hold a dentist in breach of such code
In regards to point (a) this has already been highlighted as a problem area by the Department of Health in it's 2015 "Report on the Consultation Process on new Legislation to replace the Dentists Act 1985".
The Dental Council themselves once stated in their annual report " the legal definition of professional misconduct exercises the brightest of legal brains".
Interestingly the same report notes an opinion that the Council should have a specifically responsibility for setting ethical standards in dental practise - because they can only issue non binding guidance currently.
To try hold you for professional misconduct for failing to adhere to a non binding Code where there is no statutory authority for compliance or discipline for failure to comply could be considered unlawful. It would be akin to holding a motorist responsible for failure to abide by the RSAs "Rules of the Road" in terms of their guidance where no law applies.From Code of Practice relating to: Professional Behaviour and Ethical Conduct.
Guiding principle of the Code
Section 66 of the Dentists Act 1985 requires the Dental Council to guide the dental profession on everything to do with ethical conduct and behaviour. As a practising dentist, we expect you to meet the highest standards of professional practice and behaviour and to uphold the good reputation of the profession in the community.
If you fail to comply with this guidance, it may result in fitness to practise proceedings being taken against you under the Dentists Act 1985
http://www.dentalcouncil.ie/files/Professional%20Behaviour%20and%20Ethical%20Conduct%20-%20final%20-%20%2020120116.pdf
As I stated above they can only issue non binding guidance currently as provided for by S66 (2):-Dentists Act 1985 wrote:General advisory functions of Council.
66.—(1) It shall be a function of the Council to advise the Minister, either at the request of the Minister or on its own initiative, on all matters relating to the functions assigned to the Council under this Act.
(2) It shall be a function of the Council to give guidance to the dental profession generally on all matters relating to ethical conduct and behaviour.
(3) It shall be a function of the Council to inform the public on all matters of general interest relating to the functions of the Council including any guidelines issued by the Council under subsection (2) of this section in relation to ethical conduct and behaviour.
There is a big difference between guidance and an enforceable Code, if they try to hold you in breach of a non binding guide which has no statutory backing then they are potentially acting ultra vires, if they ever did persue such an avenue there could be legal challenges. No part of the Dentists Act 1985 requires a dentist to follow the code or allows the Dental Council enforce it.
The Dental Council actually confirm the non binding nature of the Code on their website:-
http://www.dentalcouncil.ie/g_dentalethics.phpThe Code of Practice is not prescriptive but asks the reader to reflect on the relationship between dentists, their patients and the community from a moral perspective.
As I said investigating a dentists for professional misconduct for failure to adhere to something they are not lawfully required to adhere to is the Dentist Council acting ultra vires IMO.0 -
Interesting The Law Society Guide does not have the force of law. If a decision has to be made as to whether certain acts or omissions of an individual solicitor constitute misconduct, this can only be done following a hearing of the Solicitors Disciplinary Tribunal, which will consider the facts of the particular case. Generally, no action can be declared misconduct until it has been so found by the Tribunal. The Complaints and Client Relations Committee and the Regulation of Practice Committee have some limited powers to deal with cases of misconduct1.
Would this not be similar to the guidance given to Dentists and the function/scope of the FTPC who consider the facts? Can a Solicitor ignore the findings of The Tribunal because the guidelines have no force of law?0 -
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I am unsure the professional regulators generally lack powers simply on the basis that their powers have no statutory footing. Plenty of bodies have powers that aren't derived from statute.
There is an argument to be had about whether any powers purported to be exercised by any such body ought to be codified in statute but not one for here and now maybe.
I have an inkling that the powers might derive from Royal grant but I will have to check. It may well be that they exist in a legal vacuum at the same time.0 -
hullaballoo wrote: »I am unsure the professional regulators generally lack powers simply on the basis that their powers have no statutory footing. Plenty of bodies have powers that aren't derived from statute.
There is an argument to be had about whether any powers purported to be exercised by any such body ought to be codified in statute but not one for here and now maybe.
I have an inkling that the powers might derive from Royal grant but I will have to check. It may well be that they exist in a legal vacuum at the same time.
The Law Society was incorporated by Royal Charter in 1852, I'm not sure if there are any powers afforded within it, but I was under the impression they didn't have any real powers until the Solicitors (Ireland) Act 1898 and subsequent Acts.
I'm not sure of any regulatory bodies which have powers under common law, but that's not to say there aren't any, but I'd guess that in instances where such do happen it is likely to apply only to a select few and those which are in existance a long time, the Law Society pre-dates the state (188 years old) so is more likely than others to potentially have powers via Royal grant.
The Dental Council however only exists since October 1985, no powers or privileges etc were transferred over from the dissolved Dental Board, the Dental Council can only regulate it's own procedures subject to the provisions of the Dentists Act 1985.0 -
The Law Society was incorporated by Royal Charter in 1852, I'm not sure if there are any powers afforded within it, but I was under the impression they didn't have any real powers until the Solicitors (Ireland) Act 1898 and subsequent Acts.
I'm not sure of any regulatory bodies which have powers under common law, but that's not to say there aren't any, but I'd guess that in instances where such do happen it is likely to apply only to a select few and those which are in existance a long time, the Law Society pre-dates the state (188 years old) so is more likely than others to potentially have powers via Royal grant.
The Dental Council however only exists since October 1985, no powers or privileges etc were transferred over from the dissolved Dental Board, the Dental Council can only regulate it's own procedures subject to the provisions of the Dentists Act 1985.
I’m not sure what point you are trying to argue here or why. The Fitness to Practice Committee can investigate a Dentist in cases where misconduct is alleged, that includes not acting ethically in the provision of dentistry. If the Dentist is found to have fallen short of their ethical and/or professional responsibility to their patients, censure can range from advice to erasure from the Register. The Council has to apply to the President of the High Court for erasure from the Register.
I’ve sat through enough lectures on ethics, legal cases etc given by the Registrar of the Dental Council and our Indemnity Company to know that not following the ethical guidelines can lead to an accusation of misconduct or bringing the profession into disrepute. And though some I’m sure would appreciate your legal advice on what the Council can and can’t do when the President of the High Court is making the decision, at the end of that hearing, your confidence might be misplaced.0 -
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We're having a discussion about the law as it might be relevant to the OP. The discussion has now evolved into the origins of the powers of the Dental Council to censure dental professionals.
GM228 is simply pointing out that there are some fairly clear "soft spots" in the powers of the Dental Council. It might be a discussion in the abstract but that's really what this forum is for and tbh I think a lot of people enjoy when the discussions head off in this direction from time-to-time. I know I do.
No one is doubting that the Dental Council is the regulator and that they are charged with regulating dental professionals and I am sure carry out the very best and most diligent regulatory function in that role, fwiw, we're just examining the function from a legal perspective.0 -
hullaballoo wrote: »We're having a discussion about the law as it might be relevant to the OP. The discussion has now evolved into the origins of the powers of the Dental Council to censure dental professionals.
GM228 is simply pointing out that there are some fairly clear "soft spots" in the powers of the Dental Council. It might be a discussion in the abstract but that's really what this forum is for and tbh I think a lot of people enjoy when the discussions head off in this direction from time-to-time. I know I do.
No one is doubting that the Dental Council is the regulator and that they are charged with regulating dental professionals and I am sure carry out the very best and most diligent regulatory function in that role, fwiw, we're just examining the function from a legal perspective.
From a headline grabbing point of view, the HIV status and the award are the sensational aspects of the article. But it’s the conduct of the Dentist which the Dental Council would take note of. For this breaks down to two considerations, the obvious discrimination on the grounds of disability, but it must also be considered that the person was in need of treatment, the Dentist anaesthetised the patient (at that time the dentist had accepted him/her into their care and therefore has a duty of care) and then refused the necessary treatment. Now GM 228 may argue that the DC has no legal footing to investigate the behaviour of the Dentist based on ethical guidelines only, but I can assure you this is not the case. How do I know this? Because we receive guidance, and indeed warnings from DC that breaches of ethics can result in FTP hearings and censure.0 -
I’m not sure what point you are trying to argue here or why. The Fitness to Practice Committee can investigate a Dentist in cases where misconduct is alleged, that includes not acting ethically in the provision of dentistry. If the Dentist is found to have fallen short of their ethical and/or professional responsibility to their patients, censure can range from advice to erasure from the Register. The Council has to apply to the President of the High Court for erasure from the Register.
I’ve sat through enough lectures on ethics, legal cases etc given by the Registrar of the Dental Council and our Indemnity Company to know that not following the ethical guidelines can lead to an accusation of misconduct or bringing the profession into disrepute. And though some I’m sure would appreciate your legal advice on what the Council can and can’t do when the President of the High Court is making the decision, at the end of that hearing, your confidence might be misplaced.
The points being made is that following the code which they have produced is not mandatory on a dentist, investigations for failure to abide by the code have no lawful basis, the Council can not regulate it's procedures outside the scope of the Act, professional misconduct is not defined within the act, however, case law has confirmed that professional misconduct can amount to failure to abide by reasonably expected standards in a particular profession, but that is not quite the same as drawing up your own standards and expecting compliance. On that point I'll note that wrongly but honestly forming a particular opinion like in this dentist's case does not equate to professional misconduct.
Yes it is without doubt that they have investigate functions, but, using a non binding code as a basis for such an investigation is dubious and may see them fall foul of any legal challenge, just because something is done (and lectured about) does not necessarily mean it is done lawfully.From a headline grabbing point of view, the HIV status and the award are the sensational aspects of the article. But it’s the conduct of the Dentist which the Dental Council would take note of. For this breaks down to two considerations, the obvious discrimination on the grounds of disability, but it must also be considered that the person was in need of treatment, the Dentist anaesthetised the patient (at that time the dentist had accepted him/her into their care and therefore has a duty of care) and then refused the necessary treatment. Now GM 228 may argue that the DC has no legal footing to investigate the behaviour of the Dentist based on ethical guidelines only, but I can assure you this is not the case. How do I know this? Because we receive guidance, and indeed warnings from DC that breaches of ethics can result in FTP hearings and censure.
Again just because they warn of such does not mean it is correct, many bodies weather they be private or statutory have fallen foul of their procedural limits over the years. This is known in law as acting ultra vires and unfortunately does happen.
Explain to me how something which is advice and non binding can then be used as a statutory disciplinary mechanism? That is not something known to the law when exercising a statutory authority.
An example of this is the Garda ethics code which does have lawful force and a Guard can lawfully be disciplined for failure of the Code (in most cases) because there is statutory provision for this.
Perhaps it is a discussion in the abstract as hullaballoo states, but it's a valid legal discussion worth exploring none the less.0
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