Medical and health law constantly offers us new cases, which is why the lawyers of the civil society Costaș, Negru & Asociații pay special attention to this field. We present below a recent case concerning the right to practice of dentists.
In the Official Journal of Romania no. 556/21.06.2023 two Decisions were published by the Romanian College of Dentists: Decision no. 4/2CN/2023 and Decision no. 5/2CN/2023. These Decisions involved restricting and limiting the activity of dentists and differentiated the type of operations according to different specialisations, with a direct and immediate impact both on patients and on the activity of Romanian dentists.
Thus, Decision No. 4/2CN/2023 concerned the approval of the competences of the dental practitioner, i.e. of the specialist dental practitioner, having completed a residency in a dental specialty. On the other hand, Decision No. 5/2CN/2023 concerned the approval of the competence of a specialist in the specialty of dento-alveolar surgery.
To create a context, it should be noted that until 2004, in order to practice dentistry as a graduate of a faculty of dentistry with a bachelor’s degree, residency in the specialty of general dentistry was not mandatory and the permitted manoeuvres were limited only to a certain extent. In the period 2004-2020, there was no longer a residency competition in the specialty of general dentistry, but only for the specialties of Maxillofacial Surgery, Dento-alveolar Surgery, Orthodontics. Since 2020, the specialty of General Dentistry has been reintroduced and has a duration of 3 years. Given that the number of graduates with a bachelor’s degree (between 2004-2020 there were 15,000 graduates, plus several thousand more from 2020-2022) is much higher than the number of residency places, most doctors have practiced general dentistry according to the competences established by Decision No. CN 49/2012.
The problem with these new competences, or rather with their breakdown, is the following: the Faculty of Dentistry-Medical Profile is a specialist faculty in itself. On the basis of the licensing exam, dentists are given the right to perform a number of therapeutic acts, because the competences of medical specialties result from the Training Curricula, established by the Ministry of Health by law. Following the adoption of the two Decisions, dentists are no longer able to carry out a number of basic operations, nor to perform the usual procedures on patients with general conditions.
In light of the above, at the request of a very large number of dentists from all over the country, the law firm Costaș, Negru și Asociații took the initiative, formulating a request for revocation addressed to the issuer of the two Decisions, namely the College of Dentists.
In this application, we highlighted, first of all, the lack of competence of the College of Dentists to regulate in this field. The College’s main task is to apply the laws and regulations which organise and regulate the practice of the profession. Thus, what we wish to emphasise is that this professional body does not regulate the competences of dentists, but applies in a unitary manner what is already legislated by an act with superior legal force.
In other words, the foreseeable legal framework at national level does not give the College of Dentists of Romania regulatory powers regarding the competence of dentists for the simple fact that the professional body does not have powers in the initial training of dentists, but possibly in their continuing education.
Also, the Romanian College of Dentists does not have the competence to determine under what conditions admission to the faculties of dentistry is organised, what is studied at the faculties of dentistry, how the examinations are organised during the years of study and the licensing examination, what are the competences acquired during the faculty. As a professional body which dentists are obliged to join, according to the rules of the profession, after graduation, the Romanian College of Dentists cannot regulate the competences that dentists have already acquired.
To give an example from another field, the National Union of Romanian Bar Associations does not determine how admission to law faculties is organised, nor what is studied in civil or criminal law, nor how the licensing exam is organised, but it does lay down the rules for admission to the legal profession, organises the admission exams, regulates the initial training of trainee lawyers and continuous professional training, has powers in disciplinary matters, etc. A lawyer cannot, however, lose the legal competences acquired through graduation from the Faculty as a result of an act of the National Union of Bar Associations of Romania.
These competences were expressly regulated by Law no. 95/2006 on health care reform, and at EU level by Directive 2005/36/EC. After reading the latter acts and the two Decisions issued by the College, we note that they contain contrary, incompatible regulations.
Furthermore, Directive 2005/36/EC clearly and explicitly states that Basic Dental Training provides the necessary competences for ALL PREVENTION, DIAGNOSIS and TREATMENT of anomalies and diseases of the teeth, mouth, jaws and related tissues.
Thus, a modification of the competences successively recognized by the Directive (at the European Union level), by primary and secondary legislation (in Romania) and by the autonomous statutes of the Romanian universities that have organized the study programs was required. In a democratic society, based on the supremacy of law, such an approach is unthinkable.
However, the condition for the validity of any regulatory administrative act, a sine qua non, is competence. In its absence – which is apparent in the present case – any discussion is pointless, since the acts whose revocation we have sought are vitiated by a serious defect which can be remedied only by revocation.
Secondly, in the application for revocation, we have raised issues relating to the de plano infringement of the principle of legal certainty and the principle of priority application of European law. In essence, the rules enacted by Directive 2005/36/EC and by the corresponding national legislation outline a known legal framework, within which the activity of Romanian dentists was carried out until June 2023. This legal framework includes the way in which admission to studies is organised, the university studies themselves, the licensing examination, the status of the dentist after completion of studies, the conduct of professional activity in the European Union and in Romania. The same framework also includes the conditions under which the right of free practice can be effectively exercised by the graduate of an accredited higher education institution after passing the final examination.
With regard to the principle of legal certainty, the specialist doctrine has ruled that a general obligation has been established, imposed on all subjects of law, including the legislative authority, which must ensure that the lawmaking activity is carried out within the limits and in accordance with the country’s Basic Law and, at the same time, ensure the quality of legislation. This is because, in order to comply with the law, it must be known and understood, and in order to be understood, it must be sufficiently precise and predictable, thus providing legal certainty for its recipients.
By applying the decisions issued by the College, the requirements of the principle of legal certainty are not respected. The principle of priority application of European law is also blatantly ignored.
At national level, Directive 2005/36/EC is transposed in Law No. 95/2006. There is no doubt that both the Directive and Law No. 95/2006 are legal acts with superior legal force to administrative acts issued by the Romanian College of Dentists.
Therefore, retroactively modifying the entire competence established for dentists is in flagrant violation of the principle of legal certainty since, as accepted at European level, the non-retroactivity of the law is a component of the principle of legal certainty. Violation of this principle clearly leads to inconsistency at national level in this area, as it leads to a situation where a doctor who has passed the Faculty of Dentistry will no longer be able to practise outside the country and vice versa.
Thirdly, the principle of the freedom to provide services in the European Union is being violated. Thus, the College’s decisions infringe another principle, namely that of the freedom to provide services laid down in Articles 26, 49-55, 56-62 of the Treaty on the Functioning of the European Union (TFEU). According to that principle, self-employed persons and professionals who are legally active in one Member State may pursue an activity in another Member State.
This implies eliminating discrimination on grounds of nationality and, if these freedoms are to be used effectively, adopting measures to facilitate their exercise, in particular harmonising national rules on access and mutual recognition.
All Member States must recognise the profession of dentist as a specific profession distinct from that of doctor, whether or not specialised in dentistry. Member States must ensure that the training of dental practitioners provides them with the necessary skills for all activities relating to the prevention, diagnosis and treatment of dental, oral, maxillary and associated tissue anomalies and diseases. The professional activities of dental practitioners should be carried out by holders of evidence of formal qualifications as dental practitioners provided for in this Directive.
Basic dental training provides the necessary skills for all prevention, diagnosis and treatment of anomalies and diseases of the teeth, mouth, jaws and related tissues.
In concrete terms, what we would like to point out is that, if we were to accept the legality of the College’s Decisions, we would end up in a situation where both Romanian citizens wishing to practise abroad (in the European Union) and nationals of other EU Member States who have acquired the right to practise in those countries and who wish to practise in Romania would no longer be able to do so, due to the restrictions imposed by the College’s Decisions.
Fourthly, we pointed out the procedural flaws and precisely the lack of proposal from the Committee on Legislation and Health Insurance, together with the lack of transparency in the adoption of administrative acts. As stated in Article 55 of the Decision of the National General Assembly No. 3/1AGN/2023 on the adoption of the Regulation on the organisation and functioning of the Romanian College of Dentists, the Commission for Legislation and Health Insurance (hereinafter referred to as the Commission) has the power to make proposals to amend the legislative framework applicable to the profession of dentist.
As long as there have been no major changes either at EU or global level (as indicated by the Directive), there was no need for the CMDR, an entity which does not even have powers in these matters, to regulate beyond what the Commission for Legislation and Health Insurance could have proposed. It should also be pointed out that the latter body merely proposes various amendments to the legislative framework applicable to the dental profession, in none of which can it contravene acts with superior legal force.
Moreover, for the legal adoption of the administrative act, some preliminary steps are necessary. One of these is the convocation of the members of the National General Assembly, which is done at least 10 days in advance. This approach is intended to ensure a logical sequence of stages in the adoption of an act, as well as decision-making transparency.
Therefore, such Decisions cannot be adopted overnight, as happened in this case. Moreover, these matters cannot be put to the vote of the General Assembly without some preliminary acts being adopted and delivered to those who decide accordingly. In view of the above, we consider that the decisions of the College do not comply with the progressive procedure to be followed in this process and are thus vitiated.
Last but not least, the rules governing the profession of dentist must be predictable and predictable, as enshrined in Article 1(1). (5) of the Constitution (which enshrines the so-called rule of law), and the work of dentists should not be affected, untimely, by rather exotic legislative amendments.
It should be mentioned, also in this context, that we are not talking about minor restrictions on the competences of dentists, but about a serious impairment of rights gained, absolutely impossible to understand. To give just one example, the decisions whose revocation we requested led to such a drastic restriction of competences that a dentist could no longer perform subgingival scaling, while a nurse was considered qualified to perform the same treatment.
The foreseeable risks following the adoption and implementation of these Decisions are numerous. Thus, at national level, following a study, it was found that more than 15,000 surgeries in the environment would be directly affected by these measures, risking closure. This approach could encourage patients to go mainly to large clinics, leaving small practices behind. However, for rural Romania, such a solution would also have had serious effects.
Thus, if there is only one practice in a commune, for example, the dentist without a general dentistry speciality would only be able to carry out general procedures. Hypothetically, if an unforeseen situation arises in the course of a general procedure that complicates the patient’s condition, that doctor cannot intervene and treat the problem, but will have to refer the patient to another specialist. If we are talking about rural areas, the distance to the specialist can often be considerable and the time interval can worsen the patient’s condition. In addition, due to transport costs, time consumption, higher costs of services in urban areas, difficulties in scheduling appointments, it would be very likely that many patients would have to forgo dental treatment.
In Satu Mare County, there are 2 maxillofacial surgery specialists, no general dentistry specialist and 240 dentists, out of a population of 349,000 inhabitants. Is it conceivable that the two maxillo-facial surgeons will be on a daily tour of duty in Satu Mare County, or that when they are on leave, no surgery will be carried out, patients will be sent to other counties or doctors from other counties will be mobilised? Also, if we take Constanta county as a reference, we will note that there are 300 general dental practitioners and only 40 specialists, of which 2 in the village. Surely the number of the latter is insufficient, and the services of dentists will not practically be provided in a large part of the county.
Thus, without any discussion, the Decisions not only vilified dentists, but especially the patient, who was faced with a fait accompli and was in the situation of being limited or even denied his right to health and the right to medical treatment appropriate to his medical situation. In a society that is already facing multiple medical problems, creating such risks through the irresponsible decisions whose revocation we have requested is simply unacceptable, legally and humanely.
Following registration of our application with the issuing authority, Decisions No. 4/2CN/2023 and No. 5/2CN/2023 were repealed. Specifically, on 12 July 2023, Decision No. 9/2CN/2023 was published in Official Monitor of Romania No. 638, Part I, with the following content: Art. 1 – Decision of the National Council of the Romanian College of Dentists No. 4/2CN/2023 on the approval of the competences of the dental practitioner and of the dental practitioner specialising in general stomatology and Decision of the National Council of the Romanian College of Dentists No. 5/2CN/2023 on the approval of the competences of the specialist dentist in the specialty of Dento-alveolar Surgery, published in the Official Monitor of Romania ania, Part I, no. 556 of 21 June 2023, is hereby repealed. Art. 2. – This Decision shall be published in the Official Monitor of Romania, Part I.
We therefore conclude that the College of Physicians was right to take this decision to repeal the acts issued in a totally illegal manner, as they had disastrous effects on both the medical body of dentists and patients. Therefore, we answer the initial question, so that the right of dentists to practise can NOT be restricted, as both Decisions are abusive.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by av. Adela Suciu and by av. Loredana Feier, both from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 17 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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