Following recent reports of illegal tooth whitening, we re-visit the legislation surrounding this commonly sought-after procedure.
On 31 October 2012, new regulations regarding tooth whitening came into effect. The new regulations effectively increased the percentage of hydrogen peroxide contained or released in tooth whitening or bleaching products to 6%, subject to conditions.
- Treatments are sold by dental practitioners only
- For each cycle of use, the first treatment is administered by a dental practitioner, or under their direct supervision
- After the first treatment, the products may be provided to the consumer to complete the cycle of use
- Treatments are not to be used on a person under 18 years of age
Dentists are advised to carry out an examination before embarking on a course of tooth whitening to determine whether it is a suitable treatment option.
A detailed contemporaneous record should be kept of this examination, detailing the consent process including the discussion with the patient about the risks and benefits of the treatment.
To only be sold by dental practitioners
In practice, this will mean that a dentist can only sell tooth-whitening products containing 6% hydrogen peroxide to the public if they are patients at the practice.
For each cycle of use, first use by a dental practitioner
The requirement that the first use of each cycle is by the dentist (or under their direct supervision) means that tooth whitening products containing or releasing up to 6% hydrogen peroxide cannot be sold to patients at reception or by post.
Patients who have not had appropriate instruction on loading a home tooth whitening tray with the tooth whitening product, and who have not received instruction on fitting the tray in the mouth, could be at risk of swallowing excess material.
The requirement that the first use of each cycle is by a dental practitioner (or under their direct supervision) helps to allay these concerns.
Dental Protection advises members to make a detailed contemporaneous record of the examination and the instructions given to the patient at the first appointment.
Under direct supervision
The General Dental Council’s Scope of Practice sets out that hygienists and therapists can provide tooth whitening under the prescription of a dentist if they are trained and competent. Thus hygienists and therapists can administer the first use of tooth whitening, if an appropriate level of safety is ensured.
Trained and competent
Only dentists, therapists and hygienists can provide tooth whitening. Therapists and hygienists must have a prescription from the dentist before providing this treatment.
Dental Protection advises members that it is appropriate that the dentist is on the premises when the first use of the tooth whitening product is provided to the patient by a therapist or hygienist. If a dentist is issuing a prescription to a hygienist or a therapist, they need to be confident that an appropriate level of safety is ensured.
Completing the cycle
After the first in-surgery application, the patient can be provided with the tooth whitening product for home use. The dentist’s duty extends to continuing to monitor the provision of top-up gels and ensuring this is in accordance with the patient's treatment plan. The dentist does not necessarily have to be physically present when the top-up gel is handed out, but the duty is to have a system that ensures what is handed out is in accordance with the specified treatment plan.
The Regulations and EU Directive specifically state the product must not be used on patients aged under 18.
The requirement that patients must be at least 18 years old has created an ethical dilemma for members who wish to act in the best interests of their patients but where the treatment is prohibited by the Regulations by virtue of the patient’s age.
In this scenario it is an individual clinical decision for the member whether to breach the Regulations to provide the treatment that the member considers is in the best interests of the child.
If a member wishes to provide treatment to a child in breach of the Regulations, they are advised to:
- Have a detailed discussion with the patient/parents, as part of the consent process. Ensure that patient/parents are fully informed as to the risks and benefits of both bleaching procedures, and the more interventive alternatives, including a discussion about the legal status of tooth whitening procedures and whether it is appropriate to delay treatment until the patient is 18 years of age
- Document all consultations carefully in the patient’s clinical notes and be aware that the dentist may be vulnerable to prosecution
Breach of the Regulations
The maximum penalty for breaching the Regulations is a sentence of imprisonment not exceeding six months.
The General Dental Council’s Position Statement on Tooth Whitening sets out that if it receives information or a complaint that a registrant is using a product in excess of 6%, in breach of the Regulations, the registrant may face fitness to practise proceedings and can expect the matter to be referred to the relevant Trading Standards department.