Does the risk of qualification of illegal practice of medicine still hang over non-medical persons performing laser hair removal?

On November 8, 2019, the Council of State issued a decision awaited by aesthetics professionals by annulling a decision by which the Minister of Solidarity and Health had refused to repeal the provisions of 5° of the decree of January 6, 1962 reserving the practice of laser hair removal and pulsed light to doctors (Council of State, November 8, 2019, 424954).

More specifically, the Council of State considered in this ruling that while the protection of public health could justify a restriction on the freedom of establishment and the free provision of services provided for by European law (Articles 49 and 56 of the Treaty on the Functioning of the European Union), it did not appear from the elements put forward by the State that the protection of public health required reserving these hair removal practices solely for doctors.

Following this annulment, the Council of State requested the competent authorities, within a reasonable time, to repeal the provisions of Article 2(5°) of the decree of January 6, 1962, reserving the practice of laser and intense pulsed light to doctors, but also to take the necessary measures to regulate these practices in order to guarantee both compliance with the rules of the European Union's internal market and the protection of public health.

Such a decision was particularly expected since, pursuant to the decree of January 7, 1962, any person practicing laser hair removal or pulsed light without being a doctor was liable to criminal conviction for illegal practice of medicine (L4161-1 of the Public Health Code). Practitioners working in aesthetic medicine offices or centers, or where such acts were performed by beauticians, could also be convicted, both criminally and disciplinarily, for complicity in the illegal practice of medicine.

However, it must be noted that to date the competent authorities have still not implemented the injunctions of the Council of State and that the former regime reserving the practice of laser hair removal and intense pulsed light to doctors is therefore still applicable.

By a ruling of February 2, 2023, the Council of State, noting that its previous decision had still not been implemented, ordered the State to comply (CE, February 2, 2023, No. 468009).

However, a large number of aesthetic centers specializing in laser hair removal performed by beauticians, under the possible supervision of a doctor, have already opened since 2019. Therefore, the question arises as to what risks they face in light of the 1962 legislation still in force?

In reality, these risks appear limited since the courts seem, unanimously, to refuse convictions for illegal practice of medicine or complicity therein:

• In two rulings of March 31 and October 20, 2020, the Criminal Chamber of the Court of Cassation refused, based on the aforementioned European provisions and the 2019 Council of State ruling, to convict non-doctors who performed pulsed light hair removal (Cass. Crim., March 31, 2020, n°19-95.121; Cass. Crim., October 20, 2020, n°19-86.718).

• By two rulings of May 19, 2021, the civil courts also seem to have aligned with this position by refusing to consider as illegal a franchise agreement whose main purpose is the performance of pulsed light hair removal acts by non-physicians (Cass. Civ., 1re, May 19, 2021, n°19-25.749 and 20-17.779).

If these rulings only concern pulsed light and not laser hair removal, it must be noted that the reasoning should be substantially the same since the Council of State's decision specifically targets these two practices.

• For its part, the National Council of the Order of Physicians, following a similar line of reasoning, has considerably modified its case law regarding practitioners prosecuted for complicity in the illegal practice of medicine for having practiced in centers where laser hair removal was performed by non-doctors, now considering that they could rely on the decision of the Council of State of November 8, 2019 to dismiss this grievance (CNOM, October 21, 2021, n°13860 and 13960).

In application of these decisions, it should be considered that while the monopoly regime for doctors regarding laser hair removal is still in force, the risks of conviction for non-doctors performing such services appear quite limited.

Nevertheless, an inventory will have to be carried out when the new regulations are enacted, and these centers will need to comply if necessary.

In this regard, by a decision of July 27, 2023, the High Authority for Health validated a draft decree submitted by the government and providing for the training methods for persons required to practice laser hair removal, without any medical qualification (nurse, doctor…) being mentioned.

It is to be hoped that the new regulations will now be quickly published and promulgated in order to remove the legal uncertainty that still surrounds the regime applicable to laser hair removal.

 

Health Law