I need your help in my ongoing fight against the bureaucracy.A couple of posts ago, I mentioned that Dr J and I had tripped over a great business opportunity at the World Congress on Anti Aging Medicine in Las Vegas.
That opportunity is a teeth whitening system that works in just 15 minutes with no pain, no sleeping overnight with some mouthguard in, and no visit to the dentist where he charges you enough to put his kids through school. The technology is stunning, it's safe, it's real, and it works... all for A$149. Now before we get into some protracted debate about the relative merits of a whiter smile, just remember that there's a mountain of research out there about how the "whiteness" of a person's smile has a direct impact of how other people treat them, what job they can get, what life partner they get, and even their chance of getting laid next Saturday night.
The problem is, this new whitening technology pisses dentists off. Why? Because they charge around A$900 for a treatment that takes an hour and a half, uses toxic chemicals, and can hurt like hell.
Dental Registration Boards all around the world are getting hot and bothered about this new technology, claiming that "only dentists are permitted to do tooth whitening". So far, their collective assertions haven't been tested in any court, but whenever a Dental Board in the USA, Canada, the UK, Oz, or just about anywhere else worth living finds a non-dentist offering teeth whitening, they send in some bully to bang his shoe, shout a lot, and generally act intimidating.
Here in New South Wales, we're aware of at least 4 occasions where the Dental Board sent in the bully. To do that, they are relying on a clause of The Public Health Act which says only a properly registered Dentist may perform a "Restricted Dental Practice". The Act defines Restricted Dental Practice as the performance of any operation on the human teeth or jaws or associated structures.
I need your help because legal advice tells us that we will win or lose a fight with the Dental Board based on how the court defines that clause, and in particular, the word "operation". Would it be the broadest definition possible, or would it be the more narrow medical definition?
Here's my question to you...
How would you define "performance of any operation on the human teeth"?
Forget about what our product might or might not do or how it might or might not work... just think of the phrase within the context of the Public Health Act. And no, you don't need to be a lawyer to give me your opinion... any opinion will count and there are no right or wrong answers. Pretend, if you like, that you are the Court in the case of the Dental Board V. Chester T Bear.
This is serious, because as you know, I hate bureaucrats, and I never back down to bullies. However, if we go ahead with this project and lose, The Bear could be writing his blog from behind the razor wire topped walls of Silverwater Jail.
16 comments:
Do you have common law in Oz? If so, I would recommend checking to see if there are cases interpreting this clause, or a similar one. I would not rely on lay opinions, they don't usually carry much weight in courts. Also, look for policy arguments for/against a certain interpretation. You could look at the legislative history of the adoption of that clause.
Thanks e. Yes, we most definitely do have Common Law. (Some would say our law here is the commonest of all, but that's unkind to the many hard working judges who enjoy a glass or two of red at the end of each day.)
We've had a barraster check all that, and he reports as follows;
There are NO cases anywhere in Australia that have dealt with this issue.
There was a case in England in 1878, Herman v Duckworth, that related to false teeth. While the was no necessity for the court to define operation, the magistrate hearing the case did comment that "an operation of the teeth really means an operation in a surgical sense".
There is also an interpretation of "operation" in the Emergency Medical Operations Act of the Northern Territory, which defines "operation" in its interpretations as "a surgical operation, and includes the administration of an anaesthetic".
He doesn't appear to have reviewed any parliamentary debate to see if the term was considered by our learned representatives.
I know lay opinion doesn't hold much sway in court... the rationale being that anyone who hasn't studied the law for 5 years is inferior, and is therefore not capable of rendering an opinion... but I thought I'd ask anyway.
Oh my. Did I write "barraster". Dear oh dear. I have been reading too many spams from Nigeria.
I meant "barrister".
Well the Act’s definition section is silent on the subject of “operation”. so, the Interpretation Act 1987 may be of some assistance.
As a layperson I’d define an “operation” as an invasive procedure.
Thanks e and mouse.
For what it's worth, the Parliamentary Secretary made the following definition in his Second Reading speech;
The definition of the practice of dentistry has also been revised to provide protection for five separate "restricted dental practices", being treatments and other activities which can be harmful if not performed properly, or if performed without proper training. "Restricted dental practices" will cover: treatments which are inherently exposure prone and which therefore place both patient and dentist at risk of exposure to an infectious disease. These treatments include procedures involving the cutting of tissue, making of moulds and preparation and fitting of dental appliances; Services involving the use of radiation equipment, which could if applied incorrectly, lead to radiation exposure, and operations on the mouth or gums which could result in serious and permanent damage, if not provided appropriately. Unregistered or unauthorised persons who seek to perform the functions covered by the restricted dental practices will be guilty of an offence.
...which, while better than no definition at all, still contains "treatments and other activities which can be harmful if not performed properly".
I could easily make an argument that if you brush your teeth the wrong way, that may be harmful, so we're going to get into an argument about "harmful".
operation:an act of surgery on a patient.
surgery:the branch of medicine concerned with treatment of bodily injuries or disorders by incision or manipulation.
can't manipulation,even in a vague way, be used to describe the manipulation of the external colouring of the tooth enamel via the use of chemicals etc?
That would technically make it 'an operation'of a more modern day sort.cosmetic procedure would be a more appropriate name,though.
If it's okie doke with you CTB, I'm going to send your entry to a friend of mine who is in the dental field over here. I want her comments.
You know how I feel about this, so posting my own comments would inflame an already ridiculous situation.
I'll let you know my dental pal's comments as soon as I hear back :)
Stand by ... lol.
xx
"barraster"
LOL.
Your head is inflamed already.
What, exactly, does one have to do, or have done to oneself during this amazing new treatment? Is it as easy and relatively harmless as brushing teeth or is it a difficult procedure requiring years of practice, knowledge, steady hands and specialized equipment.
Perhaps this is similar to the nonsurgical, i.e., laser face lifts and hair removal business that have sprouted up in the last few years. Many of these operated by people with only a few days of training. I don't hear the plastic surgeons and dermatologists crying over lost revenue, in fact many of them have capitalized on it by associating their practices with spas, hair removal, skin care studios etc. I'm intrigued.
I once slipped when brushing my teeth and seriously skinned my gums, it hurt a lot and limited my eating options for a bit.
I've also accidentally jammed a toothbrush up my nose (another slip) and have squeezed toothpaste in my eye, that was particularly nasty.
I'd be glad to appear in court as an example of how dangerous a procedure toothbrushing can be - if you think it would help!
Thanks all.
Memy, all one has to do with this is stick a mouthguard in one's mouth and sit under a blue light for 15 minutes. In fact, the person doing the treatment (if I can call it that) doesn't interact with your mouth, teeth, gums, jaw or any other body part.
And Mouse, you're pretty much on the same page we are.
Another place you can look, if you haven't already (and caw is heading in this direction) is to see if there are industry standards, terms of art or something like that. I think you can make the policy argument that if the procedure is not inherently dangerous (jamming your toothbrush up your nose is not an inherent danger of toothbrushing, I'm afraid, though it is funny), then there is no need for medical professionals to be the only ones to administer the procedure.
Also something about healthy competition leading to innovation and to services being available to a wider swath of the population. That would also be a policy argument, but obvy regarding the desirability of a robust economy.
Thanks e. That's good advice. Of course, I'm sure their experts would say smiling without a dentist around is inherently dangerous, but that's what vested interests are for.
Ah well. Maybe I'll just forget the whole thing and run off to live in a cave. It's ever so tempting.
Fascinating debate to which I have no intelligent input, unfortunately. I have no background in public policy or the law. However, as a completely ignorant lay person, MY interpretation of an Operation would be a procedure for which you needed to be under an anaesthetic.
Good luck!
A cave? Shit. Where the air conditioner go? And the dishwasher?
If you lived in a cave, would you be able to use an electric toothbrish EVEN if a dentist wasn't present?
BTW, I'm phoning my dental buddy tomorrow (my Friday) and will send you her feedback post-haste.
Sounds very much like the ionic white system which is available in most stores here.
http://www.latitudes-international.com/OrderOnline.html
Post a Comment