Mr. David O'Flynn:

I thank the Chair and the committee members for inviting us here today to talk about dental regulation. Next year will mark the 40th anniversary of the Dentists Act 1985. The Act is a legacy of a different time. As L.P. Hartley wrote, "The past is a foreign country: they do things differently there." The Dentists Act predates the Internet, emails and mobile phones. In 1985, five current members of the European Union did not exist as countries, Germany was two countries, the Czech Republic and Slovakia were one, and one third of the EU lay behind the Iron Curtain. It was the year of Live Aid and moving statues in Cork and it was the last time Mick O’Dwyer and Kevin Heffernan went head-to-head in an All-Ireland final. In that foreign country, the Dental Council was obliged by law, and still is, to write by prepaid post to all registrants on any matter concerning their registration.

On my first day as registrar of the Dental Council in June 2009, I met our line unit's principal officer from the Department of Health. We were in a greeting line waiting to meet Mary McAleese at a conference in Farmleigh House, and as we chatted, he told me that the Dentists Act would be looked at in 2010. The Dental Council has made submissions calling for the Dentists Act to be replaced in 2008, 2009, 2011, 2013 and 2021. I have been told by five consecutive Ministers for Health, including the present Taoiseach and his predecessor, that replacing the Dentists Act is a priority. I have been told this by two Secretaries General of the Department and countless other senior officials over the years. In the office, we joke that Mr. Paul Lyons and I are like the two characters in Waiting for Godot at the side of the road. We come in and we wait and wait. We have been waiting a very long time at this stage.

The current members of the Dental Council are concerned at their inability to protect the public. There have been a number of high-profile incidents recently that have attracted extensive media coverage, and gaps in regulation have been exposed, but nothing is served by the council having to continually point out deficiencies in the legislation when patients are harmed.

The Dental Council made its 2021 submission, entitled Regarding Legislative Change in Dental Regulation, to the Minister for Health at the request of his officials. This report synthesises the previous submissions made by the council, the learning and experience of each council since 2005 and, crucially, it is solution-focused. Uniquely, this submission is supported by both the regulator and the regulated. While it is very disappointing that it took more than two years to commence an engagement on the submission, we are pleased this has now happened. However, it is important to bear in mind that today the Dentists Act remains almost exactly as it was in 1985. The purpose of this statement is not to rake over the smouldering embers of the past but to point out as forcefully as I can that the public has been compromised and the public’s confidence in the profession eroded by a failure to update dental regulation.

I have listed 12 incidences in the appendix to this submission where I have become aware of serious matters where I have been unable to take effective action because of deficiencies in the Act. In each and every case, the Dental Council would have been able to take action if the recommendations in the 2021 submission had been implemented. Some examples of these deficiencies include becoming aware of unregistered dentists providing treatment to patients, including a person with a conviction for sexual assault, a person who repeatedly failed to diagnose a severe infection in a young child which put the child at severe risk of sepsis, and a person who had been erased from registers in two other European countries. I have received notifications from international regulators concerning approximately forty registered dentists who have had sanctions applied in other countries. The Dental Council was unable to act as these dentists were already on the Irish register when sanctioned. This is a crucial point. We can deal with those before they become registered, but after the registration happens, it is not possible. We have had some serious infection prevention and control matters brought to our attention, including a dentist working from a Portakabin, numerous incidences where there were concerns that instruments were not being properly sterilised, and a dentist leaving bloodied, extracted teeth on a radiator in full view of patients.

How can the Dental Council protect patients when the current Act does not allow it to enter a dental premises or to take account of overseas sanctions? On one occasion, a tattoo artist asked me to inspect her dentist's surgery. She was concerned the dentist was not sterilising his instruments properly and she saw them lying in a dirty sink. She outlined the processes she follows in her studio to prevent infection spreading, which were very similar to the Dental Council’s infection prevention and control, and she had valid concerns. She wanted the Dental Council to inspect, and she was incredulous that we had no power to enter or inspect a dental practice.

There are other concerns too. There is no statutory obligation on a dentist to maintain his or her competence. A dentist can leave dental school and, over a 40-year career, never be asked to demonstrate to the regulator that they remain competent to practise dentistry. Dentistry is an outlier in this regard, both in terms of regulated healthcare professions in Ireland and in dentistry internationally. There is unanimity among the dental community that a statutory competence scheme is required urgently.

A further concern is that there is no register of dental practices and no way to hold practice owners who are not dentists to account. Last year, "Prime Time" highlighted a case of an unregistered person practising dentistry in Drumcondra. The practice is not owned by a registered dentist and there is no way to hold the owners of this practice to account.

The Dental Council has found itself in the public eye on too many occasions over the past two years because of shortfalls in the Act. The Dental Council wants to do a comprehensive job of regulating the dental profession. We do not want to spend time on the airways pointing out deficiencies in legislation. The public is not well served by this and it distracts from our ability to do our work.

Bringing forward a new dentists Act is already Government policy and is one of the key action points in Smile agus Sláinte, the national oral health policy. We warmly welcome the establishment of the new oral health unit in the Department of Health. The establishment of the unit has the potential to make a significant and positive contribution to dentistry, both in the regulatory framework and service delivery. The Dental Council recognises the positive and collaborative engagement we have had with the unit over the past six months. While I recognise the political reality is that it will not be possible to start work on a new dentists Act before the next general election, there are other measures that must be considered in the short term. At the Department’s request, we submitted three measures we believe would significantly enhance public protection and public confidence. These could be readily provided by amending the current Dentists Act. These are not groundbreaking or novel suggestions but they will immediately enhance public safety. These include introducing a statutory competence scheme, allowing the Dental Council to inspect the display of registration certificates and to confirm that clinical staff are appropriately registered, and providing a legislative framework which strengthens the Dental Council’s ability to regulate the quality of dental education.

While the recent collaboration with the Department has been extremely positive, it has not yet achieved any measurable results. We have always been, and will continue to be, ready to contribute our knowledge and experience to achieve a better system of regulation for dental patients. The Dental Council has been given many commitments over the years but we hope this time that change is imminent. My takeaway message for this committee is that the main problem with the Dentists Act 1985 is that it generally only allows the Dental Council to act in retrospect, effectively after the harm has been done. A modern system of regulation must allow the regulator to take proactive steps to try to take action before harm is done. I urge the members to read our submission Regarding Legislative Change in Dental Regulation, a copy of which I circulated to the committee, and to view it as a roadmap to making dental regulation more effective and relevant for the needs of the 21st century. The Dentist Council would like to consign the Dentists Act 1985 to the library shelves of a long ago and distant time.

I thank the committee members for their time.