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9 1985

DENTISTS ACT, 1985

PART V

Fitness to Practise

Inquiry by Fitness to Practise Committee into conduct of a registered dentist.

38. —(1) 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

(b) his alleged unfitness to engage in such practice by reason of physical or mental disability,

and the application shall, subject to the provisions of this Act, be considered by the committee established by the Council under section 13 (2) (b) of this Act (in this Act referred to as the “Fitness to Practise Committee”).

(2) Where an application is made under this section and the Fitness to Practise Committee, after consideration of the application, is of opinion that there is not sufficient cause to warrant the holding of an inquiry, it shall so inform the Council and the Council, having considered the matter, may decide that no further action shall be taken in relation to the matter and shall so inform the Fitness to Practise Committee and the applicant, or it may direct the Committee to hold an inquiry into the matter in accordance with the provisions of this section.

(3) Where an application for an inquiry is made under this section and the Fitness to Practise Committee, after consideration of the application, is either of opinion that there is a prima facie case for holding the inquiry or has been given a direction by the Council under subsection (2) of this section to hold the inquiry, the following shall have effect—

(a) the Fitness to Practise Committee shall proceed to hold the inquiry,

(b) the Registrar, or any other person with the leave of the Fitness to Practise Committee shall present to that Committee the evidence of alleged professional misconduct or unfitness to practise by reason of physical or mental disability, as the case may be,

(c) on completion of the inquiry, the Fitness to Practise Committee shall embody its findings in a report to the Council specifying therein the nature of the application and the evidence laid before it and any other matters in relation to the registered dentist which it may think fit to report including its opinion, having regard to the contents of the report, as to—

(i) the alleged professional misconduct of the registered dentist, or

(ii) the fitness or otherwise of that dentist to engage in the practice of dentistry by reason of his alleged physical or mental disability,

as the case may be.

(4) When it is proposed to hold an inquiry under subsection (3) of this section, the person who is the subject of the inquiry shall be given notice in writing by the Registrar sent by pre-paid post to the address of that person as stated in the register of the nature of the evidence proposed to be considered at the inquiry and that the person and any person representing him shall be given the opportunity of being present at the hearing.

(5) The findings of the Fitness to Practise Committee on any matter referred to it, and the decision of the Council on any report made to it by that Committee shall not be made public without the consent of the person who has been the subject of the inquiry before the Fitness to Practise Committee unless such person has been found, as a result of such inquiry, to be—

(a) guilty of professional misconduct, or

(b) unfit to engage in the practice of dentistry because of physical or mental disability,

as the case may be.

(6) The Fitness to Practise Committee shall, for the purposes of an inquiry held under subsection (3) of this section, have the powers, rights and privileges vested in the High Court or a judge thereof on the hearing of an action in respect of—

(a) the enforcement of the attendance of witnesses and their examination on oath or otherwise, and

(b) the compelling of the production of documents,

and a summons signed by the chairman of the Fitness to Practise Committee or such other member of that Committee as may be authorised by it for that purpose may be substituted for and shall be equivalent to any formal procedure capable of being issued in an action for forcing the attendance of witnesses and compelling the production of documents.

(7) Where—

(a) a person on being duly summoned to attend before the Fitness to Practise Committee makes default in attending, or

(b) a person, being in attendance as a witness before the Fitness to Practise Committee, refuses to take an oath lawfully required by that Committee to be taken, or to produce any document in his power or control lawfully required by that Committee to be produced by him or to answer any question to which that Committee may lawfully require an answer, or

(c) a person, being in attendance before the Fitness to Practise Committee does anything which, if that Committee were a court of law having power to commit for contempt, would be contempt of court,

such person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

(8) A witness before the Fitness to Practise Committee shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(9) If the Fitness to Practise Committee requires the dental records of a patient of any registered dentist to be produced for the purpose of any inquiry conducted by that Committee, such records shall not be made available to the Fitness to Practise Committee without the consent of the patient concerned, unless that Committee specifically directs the registered dentist concerned to produce such records.

Erasure or suspension from register for professional misconduct, unfitness to practise or failure to pay retention fee.

39. —(1) Where a registered dentist—

(a) has been found by the Fitness to Practise Committee, on the basis of an inquiry and report under section 38 of this Act, to be guilty of professional misconduct or to be unfit to engage in the practice of dentistry because of physical or mental disability, or

(b) has failed to pay a retention fee charged by the Council under section 25 of this Act after the Council had not less than two months previously by notice in writing sent by pre-paid post to the person, at his address as stated in the register, requested payment of the fee on more than one occasion,

the Council may decide that the name of such person should be erased from the register or from the Register of Dental Specialists, as the case may be, or that, during a period of specified duration, registration of his name in the register concerned should not have effect.

(2) On making a decision under this section, the Council shall forthwith send by pre-paid post to the person to whom the decision relates, at his address as stated in the register, a notice in writing stating the decision, the date thereof and the reasons therefor.

(3) A person to whom a decision under this section relates may, within the period of 21 days, beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies—

(a) The High Court, on the hearing of the application, may—

(i) cancel the decision, or

(ii) declare that it was proper for the Council to make a decision under this section in relation to such person and either (as the Court may consider proper) direct the Council to erase his name from the register concerned or direct that during a specified period (beginning not earlier than 7 days after the decision of the Court) registration of his name in that register shall not have effect, or

(iii) give such other directions to the Council as the Court thinks proper,

(b) if at any time the Council satisfies the High Court that such person has delayed unduly in proceeding with the application, the High Court shall, unless it sees good reason to the contrary, declare that it was proper for the Council to make a decision under this section in relation to such person and either (as the Court may consider proper) direct the Council to erase his name from the register concerned or direct that during a specified period (beginning not earlier than 7 days after the decision of the Court) registration of his name in that register shall not have effect,

(c) the High Court may direct how the costs of the application are to be borne.

(4) Where a person to whom a decision of the Council under this section relates does not, within the period of 21 days, beginning on the date of the decision, apply to the High Court for cancellation of the decision, the Council may apply ex parte to the High Court for confirmation of the decision and, if the Council so applies, the High Court, on the hearing of the application, shall, unless it sees good reason to the contrary, declare accordingly and either (as the Court may consider proper) direct the Council to erase the name of such person from the register concerned or direct that during a specified period (beginning not earlier than 7 days after the decision of the Court) registration of his name in that register shall not have effect.

(5) The decision of the High Court on an application under this section shall be final save that, by leave of that Court or of the Supreme Court, an appeal, by the Council or by the person concerned, from that decision shall lie to the Supreme Court on a specified question of law.

(6) (a) On erasing the name of a person from any register under this section, the Council shall forthwith send by pre-paid post to such person, at his address as stated in the register, notice in writing of the erasure.

(b) Where a direction is given under this section that during a specified period registration of the name of a person in any register shall not have effect, the Council shall, before the commencement on that period, send by pre-paid post to such person, at his address as stated in the register, notice in writing of such direction.

(7) The name of any person which has been erased from any register under this section may at any time be restored to that register by direction of the Council but not otherwise and, when a person's name is so restored to that register, the Council may attach to the restoration such conditions (including the payment of the appropriate fee which shall not exceed the fee which would be payable by such person for registration if he was then being registered for the first time) as the Council thinks fit.

(8) Where the registration of a person in any register has ceased to have effect for a period of specified duration, the Council may, if it thinks fit, on application made to it by such person, by direction terminate the suspension.

(9) On the hearing of an application under this section, the High Court may, if it thinks it proper so to do, admit and have regard to the evidence of any person of standing in the dental profession as to what is professional misconduct.

Attaching of conditions to retention on register.

40. —(1) The Council, following an inquiry and report by the Fitness to Practise Committee under section 38 of this Act, may decide to attach such conditions as it thinks fit to the retention in any register maintained under this Act of a person whose name is entered in such register.

(2) On making a decision under this section, the Council shall forthwith send by pre-paid post to the person to whom the decision relates, at his address as stated in the register, a notice in writing stating the decision, the date thereof and the reasons therefor.

(3) A person to whom a decision under this section relates may, within the period of 21 days beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies—

(a) the High Court, on the hearing of the application, may—

(i) cancel the decision, or

(ii) declare that it was proper to make a decision under this section in relation to such person and (as the Court may think proper) direct the Council to attach such conditions as the Court thinks proper to the retention of the name of such person in any register maintained under this Act, or

(iii) give such other directions to the Council as the Court thinks proper,

(b) if at any time the Council satisfies the High Court that such person has delayed unduly in proceeding with the application, the High Court shall, unless it sees good reason to the contrary, declare that it was proper for the Council to make a decision under this section in relation to such person and (as the Court may consider proper) direct the Council to attach such conditions as the Court may specify to the retention of the name of such person in any register maintained under this Act,

(c) the High Court may direct how the costs of the application are to be borne.

(4) Where a person to whom a decision of the Council under this section relates does not, within the period of 21 days, beginning on the date of the decision, apply to the Hight Court for cancellation of the decision, the Council may apply ex parte to the High Court for confirmation of the decision and, if the Council so applies, the High Court, on the hearing of the application, shall, unless it sees good reason to the contrary, declare accordingly and (as the Court may consider proper) direct the Council to attach such conditions as the Court may specify to the retention of the name of such person in any register maintained under this Act.

(5) The decision of the High Court on an application under this section shall be final save that, by leave of that Court or of the Supreme Court, an appeal, by the Council or the person concerned from the decision shall lie to the Supreme Court on a specified question of law.

(6) On attaching conditions under this section to the retention of the name of a person in any register maintained under this Act, the Council shall forthwith send by pre-paid post to such person, at his address as stated in the register, notice in writing of the conditions.

(7) The Council may at any time remove in whole or in part the conditions attached to the retention of the name of any person in any register maintained under this Act.

Powers of Council to advise, admonish, etc.

41. —(1) The Council, following an inquiry and report by the Fitness to Practise Committee under section 38 of this Act into the conduct of a person whose name is entered in any register maintained under this Act may, on receipt of the report of that Committee, if it so thinks fit, advise, admonish or censure such person in relation to his professional conduct.

(2) The powers conferred by subsection (1) of this section may be exercised either in addition to or in substitution for any of the powers conferred by sections 39 , 40 and 42 of this Act.

Erasure from register of persons convicted of indictable offences.

42. —(1) Where a registered dentist is convicted in the State of an offence triable on indictment or is convicted outside the State of an offence consisting of acts or omissions which would constitute an offence triable on indictment if done or made in the State, the Council may decide that the name of such person should be erased from the register.

(2) On making a decision under this section, the Council shall forthwith send by pre-paid post to the person to whom the decision relates, at his address as stated in the register, a notice in writing stating the decision, the date thereof and the reasons therefor.

(3) A person to whom a decision under this section relates may, within the period of 21 days, beginning on the date of the decision, apply to the High Court for cancellation of the decision and if he so applies—

(a) the High Court, on the hearing of the application, may—

(i) cancel the decision, or

(ii) confirm the decision and direct the Council to erase the name of such person from the register, or

(iii) give such other directions to the Council as the Court thinks proper,

(b) if at any time the Council satisfies the High Court that such person has delayed unduly in proceeding with the application, the High Court shall, unless it sees good reason to the contrary, confirm the decision and direct the Council to erase the name of such person from the register,

(c) the High Court may direct how the costs of the application are to be borne.

(4) Where a person to whom a decision of the Council under this section relates does not, within the period of 21 days, beginning on the date of the decision, apply to the High Court for cancellation of the decision, the Council may apply ex parte to the High Court for confirmation of the decision and, if the Council so applies, the High Court, on the hearing of the application, shall, unless it sees good reason to the contrary, confirm the decision and direct the Council to erase the name of such person from the register.

(5) The decision of the High Court on an application under this section shall be final, save that, by leave of that Court or of the Supreme Court, an appeal, by the Council or the person concerned, from the decision shall lie to the Supreme Court on a specified question of law.

(6) On erasing the name of a person from the register under this section, the Council shall forthwith send by pre-paid post to such person, at his address as stated in the register, notice in writing of the erasure.

(7) The name of any person which has been erased from the register under this section may at any time be restored to the register by special direction of the Council but not otherwise, and when a person's name is so restored to the register, the Council may attach to the restoration such conditions (including the payment of the appropriate fee which shall not exceed the fee which would be payable by such person if he was then being registered for the first time) as the Council thinks fit.

Continuance of existing inquiry.

43. —Where the Dental Board has decided to hold, or has appointed any member or members of the Board to hold, an inquiry pursuant to section 32 of the Dentists Act, 1928 , and that inquiry has not been completed before the commencement of this Act, the inquiry shall be discontinued and shall be recommenced by the Fitness to Practise Committee as if this Act had been in force at the time at which such decision was taken or such member or members were appointed and the provisions of this Part of this Act shall apply to any inquiry discontinued and recommenced pursuant to this section.

Application by Council for order suspending registration.

44. —(1) Whenever the Council is satisfied that it is in the public interest so to do, the Council may apply to the High Court for an order in relation to any person registered in any register maintained under this Act that, during the period specified in the order, registration of that person's name in that register shall not have effect.

(2) An application under this section may be made in a summary manner and shall be heard otherwise than in public.

(3) The High Court may make, in any application under this section, such interim or interlocutory order (if any) as it considers appropriate.

Privilege in respect of certain matters.

45. —Proceedings under section 38 of this Act, proceedings of or communications to or by the Council pursuant to sections 39 , 40 , 41 or 42 of this Act, reports made by the Fitness to Practise Committee to the Council under this Part of this Act and any other communications between the Committee and the Council made in the exercise or performance of the powers, duties or functions of the Committee or the Council, as the case may be, shall in any action for defamation, be absolutely privileged.

Erasure or suspension from and restoration to the Register of Dental Specialists.

46. —(1) Where a person's name has been erased or suspended from the register, the name shall, as soon as may be, if it is registered in the Register of Dental Specialists, be erased or suspended therefrom, as the case may be.

(2) Where a person's name has been restored to the register or its suspension from the register has been terminated, the name shall, if it was registered in the Register of Dental Specialists, be restored to such register or its suspension therefrom be terminated, as the case may be.

Notification to Minister of name erased or restored and of suspensions imposed and terminated.

47. —The Council shall notify the Minister on the occasion of—

(a) the erasure of the name of a person from a register maintained under this Act,

(b) the restoration of the name of a person to a register maintained under this Act,

(c) the suspension of the name of a person from a register maintained under this Act,

(d) the termination of a period of suspension from a register maintained under this Act, or

(e) the attachment of conditions to the retention of the name of a person in a register maintained under this Act,

of the erasure, restoration, suspension, termination of suspension or attachment of conditions, as the case may be.

Restoration to register of name removed, or termination of suspension imposed, for non-payment of retention fee.

48. —(1) The Council shall, on the payment of a special fee to the Council by any person whose name was erased from any register or whose registration was suspended under section 39 (1) (b) of this Act from any register for non-payment of a retention fee (and for no other reason), restore that person's name to the register, or terminate the suspension, as the case may be.

(2) In this section “special fee” means a fee of such amount as may be fixed from time to time by the Council, with the consent of the Minister.