By Catherine Paley-Vincent, Partner lawyer et Nathalie Boudet-Gizardin, Counsel Counsel
In a previous article of January 16, 2020, we highlighted the existence of a stop noticed by the 1re and 4e combined chambers (n ° 424954) of the Council of State, November 8, 2019, to which the Council of State had wished to give particular importance by having it published in the Collection of its judgments. This decision had declared the illegality, under European law, of the decree of January 6, 1962 reserving the practice of hair removal with laser or pulsed light to doctors only.
In the midst of a period of confinement, the Criminal Chamber of the Court of Cassation comes, very discreetly, to a recent judgment of March 31, 2020 (n ° 19-85.121) published in the Bulletin de la Cour de Cassation, to follow the step already taken by the Council of State.
Let us recall that until this date, unlike the Council of State, the Court of Cassation seemed to admit the practice by a non-doctor of acts of hair removal with laser or pulsed light, provided that he exercises under the responsibility of a doctor, which presupposed that (1) the act was performed under the direction and effective supervision of the doctor who was to be present in the establishment, even if he did not provide the care himself. even and that (2) the non-doctor has received sufficient training to perform laser hair removal procedures.
In the event that these two cumulative conditions were not met, the Court of Cassation condemned the non-doctor practicing acts of laser or pulsed light hair removal for illegal practice of medicine, as well as the doctor having " guaranteed ”the performance of these acts, without supervision or control, for complicity in illegal practice.
In the case judged on March 31, 2020, the Criminal Chamber of the Court of Cassation operates a clear reversal of case law, concerning the practice of acts of hair removal with pulsed light.
Two companies had been convicted by the Paris Tribunal de Grande Instance for complicity in the illegal practice of medicine, due to the use of pulsed light hair removal devices by non-doctors who practiced there. The Paris Court of Appeal confirmed this conviction for complicity in the illegal practice of medicine in a judgment of June 5, 2019, and the two companies therefore appealed to the Supreme Court. In its judgment of March 31, 2020, the Court of Cassation quashed the judgment rendered by the Paris Court of Appeal, without reference.
After recalling that " the state Council , in its judgment of 8 November 2019, considered that the ban on hair removal with pulsed light by estheticians ignores, in so far as it reserves these methods of hair removal only to doctors of medicine, the freedom of establishment and the freedom to provide services guaranteed by Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) » the Court of Cassation ruled :
- That in the first place, " said ban is not justified since the devices used can be acquired and used by private individuals and their use is authorized by beauticians for photo-rejuvenation treatments which present risks identical to those relating to hair removal. »
- That in the second place, "If hair removal with pulsed light is likely to have mild adverse effects, according to the report and opinion of the National Agency for Sanitary Health (ANSES) of October and December 2016, and to be submitted restrictions for reasons of general interest, it does not follow that these acts of hair removal can only be carried out by a doctor. "
- That " moreover, the French government notified the European Commission of a draft decree opening the practice of hair removal with pulsed light to beauticians under certain training conditions. "
The Court of Cassation concludes “ In view of these elements, it is appropriate to come back to the previous case-law and to consider that the ban on hair removal with pulsed light by persons other than doctors is contrary to the aforementioned articles of the TFEU. It follows that the companies accused cannot be legally condemned for complicity in the illegal practice of medicine. »
If the judicial judge undoubtedly decides to follow the path opened by the Council of State, the fact remains that the contribution of this decision is limited to the sole activity of hair removal with pulsed light. Indeed, the Court of Cassation does not rule on acts of laser hair removal, like the Council of State which, for its part, advocated the end of the monopoly of doctors for the two kinds of hair removal acts. produced by laser or pulsed light devices.
A second step has therefore been taken but there is still a way to go ...
Catherine Paley-Vincent
Partner
Recognized expert in health law, she intervenes in particular for the constitution and monitoring of structures between hospital and / or liberal health professionals, for the management of possible conflicts and their transactional, judicial or disciplinary consequences. The field of medical imaging is particularly familiar to him.
She advises pharmaceutical companies on medical devices, labeling and clinical trials.
She is regularly consulted on the application of ethics, in particular with regard to the regulation of professional orders of networks, advertising and the Internet used in the medical and veterinary world.
Nathalie Boudet-Gizardin
Counsel
She joined the firm the same year in the Civil and Health team of Catherine Paley-Vincent. She advises health professionals particularly in terms of:
Civil, disciplinary and criminal defense of health professionals, professional orders and medical and veterinary biology laboratories
Advice and assistance to health professionals to structure their activities, including within the framework of public / private cooperation, particularly in medical imaging
Support for healthcare professionals and innovative companies in the development of their e-health projects.
