Restriction on the scope of practice performed by dentists who advertise their dental specialties

[27-1(B) KCCR 361, 2013Hun-Ma799, May 28, 2015]

In this case, the Constitutional Court held unconstitutional Article 77 Section 3 of the Medical Practice Act which prevents dentists at dental clinics who indicate and advertise their specialty areas from treating patients not related to their specialties as it violates the complainants’ freedom of occupation as dentists and equality right.

Background of the case

(1) On July 16, 1998, the Constitutional Court ruled that the omissionto provide for procedure to institute dental specialist examination bytheMinister of Health and Welfare, pursuant to the delegation from theMedical Service Act and the ‘Regulation for Training of BoardCertified Specialists and Recognition of qualification’, was unconstitutional(96Hun-Ma246).

(2) After the decision, the ‘Regulation for Training Dental Specialists and Recognition of Qualification’ was enacted by Presidential Decree No. 18040 on June 30, 2003 and the ‘Enforcement Regulation for Training of Board Certified Specialists and Recognition of qualification’ was enacted by Ministry of Health and Welfare Decree No. 258. Pursuant to the Enforcement Regulation, the first dental specialist examination was held in 2008.

(3) Meanwhile, the proviso of Article 55 Section 2 (currently the proviso of Article 77 Section 2) was newly inserted in the Medical Service Act revised by Act No. 6686 on March 30, 2002 and banned dental specialists to indicate their specialties. But the provision was expired on December 31, 2013 and therefore, dental specialists are

allowed to indicate their specialties since January 1, 2014.

(4) But Article 77 Section 3 was newly inserted in the Medical Service Act revised by Act No. 10609, and stipulates that a dental clinic indicating its specialized department should treat patients only concerned with the specialized department indicated, and Article 1 of the addenda of the same Act provided that the Act should enter into force on January 1, 2014. As a result, although dental clinics are allowed to indicate their specialties, such dentists who indicate their specialized areas should treat patients only concerned with their specialties.

(5) Complainants are dental specialists who run their own clinics, are hired by dental hospitals or are public health dentists and also dental residents who prepare for the 7th dental specialist examination conducted in January 2014.

(6) The complainants filed this constitutional complaint on November 26, 2013, arguing that Article 77 Section 3 of the Medical Service Act infringes on their freedom of occupation and equality right as it prevents dentists who indicate their specialties from treating patients other than those related to their specialties.

Provision at Issue

The subject matter of this case is whether Article 77 Section 3 of the Medical Service Act (revised by Act No. 10609, April 28, 2011, hereinafter, the “Instant Provision”) violates the Constitution, infringing on the complainants’ fundamental rights.

Medical Service Act (revised by Act No. 10609, April 28, 2011)

Article 77 (Medical Specialists) (3) Notwithstanding the provisions of Article 15 Section 1, a dental clinic indicating its specialized medical department under Section 2 shall treat patients only concerned with the

specialized medical department indicated: Provided, that the same shall not apply to emergency patients.

Summary of Decision

1.Whether the Instant Provision infringes on the freedom of occupation

(1) Whether the Principle of protection of confidence is violated

The complainants argued that they were confident in that they could treat all types of patients when it became possible for them to indicate their specialties in dentistry from January 1, 2014, but the Instant Provision betrayed their confidence, thereby violating the principle of protection of confidence. Given the fact that the indication of dental specialist itself had never been allowed before, however, the aforementioned confidence should be considered as a mere expectation or prediction toward the possible future of their legal situation. The two and half year grace period provided by the Instant Provision also proves that the level of infringement on their confidence is not so severe. Therefore, the Instant Provision does not infringe on the freedom of occupation, in violation of the principle of protection of confidence.

(2) Whether the rule of clarity is violated

The Medical Service Act or other related laws and regulations do not specify the contents and scope of practice the dental specialists can do. But in order to be a dental specialist, a board certified general dentist should pass the dental specialist examination after completing a residency program, and the complainants who are obliged to abide by the Instant Provision must know their practice areas and the differences among each of dental specialties. Therefore, the Instant Provision does not violate the rule of clarity.

(3) Whether the rule against excessive restriction is violated

The legislative purposes of the Instant Provision are to place maximum restriction on the dental specialists from treating patients at dental clinics, which are the primary health care providers, as general dentists, while leading them to provide medical service at secondary health care institutions, thereby consolidating a proper dental health care delivery system and to promote well-balanced development among specialized areas by preventing excessive imbalance in the dentists’ preference of particular specialties and such purposes are legitimate.

The Instant Provision, by placing restrictions on the scope of dental specialists’ practice, makes it practically impossible for the dental specialists at dental clinics to indicate their specialties, resulting in drastic deterioration of the value of dental specialists: this makes dental specialists working at dental clinics decline to specify their specialized areas, and therefore, patients have difficulties in choosing proper professional treatment as they cannot find which dental clinics have dental specialists whom they look for. As a result, it is worried that the dental specialist system itself would be incapacitated by the Instant Provision.

Although there is no doubt that dental specialists can also provide all kinds of medical treatments provided by general dentists, the Instant Provision prevents dental specialists working at dental clinics from treating patients not concerned with their specialties. This prevention is a very grave infringement on the fundamental right, as it imposes extensive ban on the medical practice that can be provided by the dental specialists.

Inducing the dental specialists to practice at the secondary health care institutions by giving them disadvantage for indicating their specialized areas at primary care dental clinics is not a desirable solution. Rather, it is more appropriate to provide a fundamental and systemic solution for the proper division of role between general dentists and dental specialists and for the enhancement of mutual cooperation. Also the Instant

Provision can worsen the undesirable imbalance in the popularity of specific dental specialties such as orthodontics because only those who specialize in the popular dental specialties, which can ensure sufficient profits even by treating patients only concerned with their specialized areas, would indicate their specialties. Therefore, the Instant Provision is not a proper means to achieve the legislative purposes.

When dental specialists working at dental clinics are restricted to treat patients only concerned with their specialized areas, medical expenses can also be increased because it is hard for patients to find out dental clinics where their diseases can be properly treated and they would waste time and money to look for the right dental clinic. Moreover, if a patient has complicated diseases that require multiple treatments by collaboration of various specialized areas, the patient cannot but going to several different clinics, resulting in an increase in medical expenses. This causes great inconvenience to medical customers who want to get proper treatment by dental specialists. Therefore, the Instant Provision failed to fulfill the requirements of both appropriateness of means and least restriction of means.

The public interests intended to be achieved by the Instant Provision are admittedly important. But while it is still unclear whether placing imposition on the scope of practice of dental clinics which indicate their specialized areas can effectively achieve the legislative purposes, the private disadvantage caused by the prohibition against the dental specialists working at dental clinics from providing their medical service as general dentists are extremely severe. Therefore the Instant Provision fails to strike the balance between legal interests.

Considering the aforementioned reasons, the Instant Provision infringes on the complainants’ freedom of occupation.

2. Whether the equality right is violated

Regarding the indication of specialized areas in primary health care provider, there is no fundamental difference among medical specialists,

oriental medical specialists and dental specialists. Therefore, it is hard to find a reasonable ground for the restriction imposed only on dental specialists regarding the scope of practice when the specialized areas are indicated.

The Instant Provision, while allowing dental hospitals where specialized treatments should be provided to treat patients concerned with all kinds of specialized areas, forces dental clinics where generalized treatments should be provided to treat patients only concerned with the indicated specialties, and such discrimination is considered unreasonable.

Due to the Instant Provision, while general dentists can treat all kinds of patients regardless of specialties, dental specialists cannot treat patients not related to their specialized areas. It is hard to find any reasonable ground to rationalize this difference, as the Instant Provision allows dental specialists who have higher level of qualification to provide far narrower scope of treatment.

Therefore, the Instant Provision discriminates dental specialists against medical specialists and oriental medical specialists without any reasonable grounds and also discriminates dental specialist working at dental clinics against dental specialists at dental hospitals and general dentists, thereby violating the equality right.