In the self-employment with tattoo removal?
Many hurdles lurk in the operation of a tattoo removal studio. We give you a first insight, which these are.
Who currently and continue to operate laser for tattoo removal, learn in our Article on the current legal situation.
This question was also raised by the Weimar Administrative Court. This procedure involved the operation of a tattoo removal studio. The operator carried out the treatments itself without that he had a medical practitioner's license or a completed medical studies.
The city of Erfurt has prohibited the operator of the studio to use a laser device to remove tattoos without a Heilpraktikererlaubnis. The court confirmed the admissibility of the action of the city of Erfurt. As a legal basis of the administrative act, the Administrative Court (VG) Weimar has used the regulatory general clause in § 5 para. 1 OBG. But this should not be an isolated case for Thuringia. Similar was already by the OVG Münster with resolution of the 28.04.2006, AZ: 13 A 2495 / 03 condemned.
Under the above provision, the regulatory authorities can take the necessary measures to ward off individual threats to public safety and order. In the present case of the VG Weimar, a threat to public safety was considered, because the protected property of public security is, among other things, the inviolability of the legal system. As a result, the Weimar Administrative Court saw a blatant violation of the Heilpraktikergesetz. Because a removal of tattoos using a laser device is an exercise of medicine in the sense of § 1 para. 1 Heilpraktikergesetz and therefore requires the permission.
If you are considering setting up your own studio to remove tattoos using a laser device or include them in your repertoire, you should be urgently informed about the legal situation. If you do not, you run the risk of receiving a trade ban, of claiming damages, and even being liable to prosecution.
As already mentioned, the authorities here may refer to the Naturopaths Act. Accordingly, the practice of medicine according to § 1 para. 2 any professional or professional activity undertaken to determine, cure or alleviate disease, suffering or personal injury to humans, even if it is performed in the service of others. However, the law does not make any difference as to whether the illnesses and suffering are purely physical or else of a purely emotional nature. Nor does it depend on the method of treatment and method. Rather, there is always medicine in the sense of the Heilpraktikergesetzes before, if the activity in the general opinion requires medical expertise, and if the treatment - in generalizing and typisierender consideration of the activity in question - cause significant damage to health (this example OVG Münster, AAO, with further evidence from the case law).
All of these prerequisites apply to tattoo removal using a laser, at least if it is based on nanosecond technology. In this case, the use of a laser device requires specialist medical knowledge. This is because when the nanosecond laser is used, the pigment particles stored in the skin cell are destroyed by means of thermal energy, with subsequent cavity formation in the skin. The fragmented pigments are then taken up by macrophages and transported away via the lymphatic system. Due to the heat development, this process is fraught with so many risks that it requires special knowledge that goes beyond general knowledge of body functions. It is thus made clear that a special medical qualification is required in order to be able to carry out such a trade using nanosecond lasers from an administrative point of view.
Hi all,
I am affected and unfortunately have to give up the business of tattoo removal after 2 years. I'm using a class 4 laser and that's what I blame. My question is now. Is it possible to switch to a class 3B laser? Dealers praise it that way. And how safe is the use of a nanosecond laser for the future? Is not it a gray area in which we move? This does not interest anyone in other cities in Germany. In others, one becomes aware of it and thus destroys an existence, as in my case.
Regards
Hi Manu,
In my opinion, the use of a class 3B laser is not future-proof.
This is mainly due to the fact that a new ordinance is in the planning stage, which generally wants to allow the use of lasers for tattoo removal only specialist doctors for skin diseases and specialists for aesthetic and plastic surgery.
I have already discussed this in another post https://www.gabler-hendel.de/tattooentfernung-nur-noch-vom-facharzt/
They are right in that it is a gray area in that many communities (probably due to ignorance) treat tattoo removal studios differently. However, the tendency throughout Germany is very strong in the direction of a business - without a Heilpraktiker- or doctor approval to be able to demonstrate - to ban.
Nonetheless, it makes sense to analyze your individual situation. You are welcome to make an appointment in our office or arrange a phone call. Especially in this - highly specialized - area we could already help many clients.
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Dear Sir or Madam,
I only became aware of this topic yesterday through an article in the daily newspaper. My wife - a trained beautician - has been planning to go into business again for a few months and to offer skin tightening using plasma radiation. An electrically generated arc introduces heat into the skin, thereby tightening the tissue. Inflammation occurs intentionally. The device and training are quite expensive, so the question arises whether, in the context of ongoing legal developments, similar requirements as for lasers can be expected here in the future. I would be grateful for your assessment, although it is clear to me that this can only be non-binding, as the procedure is not comparable. The decisive factor for me, however, is whether the heat exposure is to be judged legally similar to that of the laser, so that a comparable development can be expected here.
Best regards and thank you for your reply.
Dear questioner,
As you spell out, this question is difficult to answer. Can you tell me which laser class the intended device will have?
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Dear sir Hendel,
Since the device is not a laser, but brings heat through a plasma arc in the upper layers of the skin, it has no laser class. I only feared that with the new ordinance, if necessary, the effect of heat would be the triggering element, which justifies its sole use by a person with a medical qualification or a non-medical practitioner.
Thank you!
Dear questioner,
in this constellation you are absolutely right. After the planned modernization, such an intervention may even be carried out only by a specialist in skin diseases or a specialist in aesthetic and plastic surgery or their trained personnel.
Of course, it depends on the specific strength of the heat development. However, as you describe it, this sounds like a (too) strong heat. The key question is, therefore, to what extent the arc has the potential to affect the health of the patient and how severe the inflammation that results from it.
With kind regards,
Stephan Hendel
Dear sir Hendel,
Thank you for your assessment.
Dear sir Hendel,
I think that with the § 223 StGB will not work, because every user is well known that he is a non-physician in a legally seen gray area and I can not afterwards on complete ignorance (or sudden / unpredictable Failure of the business basis) plead. Which judge should one buy this story? Accordingly, I could just buy an ice cream stand in the summer and in the winter I could complain about a disruption of the business basis. Reason: In the summer was unfortunately not foreseeable that after the summer again the winter comes with absolutely unreasonable sales. Similarly, everyone in Germany knows that such laser treatments in medical hands belongs, I move in a legal gray area and therefore I can certainly not here on the § 223 StGB plead.
Or do you seriously believe that you can succeed in court with total ignorance?
Or you think, you could at least try it and if it does not work with the § 223 StGB, then I'm at least a little richer in experience.
With kind regards,
Tattoo News
Dear Ladies and Gentlemen of Tattoo News,
First of all, I have to tell you that you mix criminal law and civil law. The disturbance of the business basis acc. § 313 BGB has nothing to do with the personal injury under § 223 StGB. In this respect, your comparison with the ice cream level lags.
But now to the actual:
The § 223 StGB (assault) is tested according to the following scheme:
I. facts
1. Objective fact
a) Physical abuse
Physical abuse is any ill, inappropriate treatment that not only negligibly affects the physical integrity or physical well-being of the victim.
-> This is the case with an intervention with a laser.
b) health damage
A damage to health is understood as the generation or increase of a pathological condition, that is to say a condition deviating from the normal bodily functions of a physical or mental nature.
-> Here, too, there is the possibility of a (negatively) deviating physical physique.
c) causality
Causality is any condition that can not be thought of without success being lost in its concrete form.
-> Also given. Because without the laser operation to remove the tattoo, the above-mentioned success would not have occurred.
d) Objective attribution
Objectively attributable is a success if the perpetrator has created a legally relevant danger, which is realized in the factual success.
-> The success is also attributable to the treating person - he operates the device.
2. Subjective fact
Intent on the objective fact
Intentional intention is the will to realize a criminal offense with knowledge of all its objective facts.
-> Also given, since the treating person at least knows that injuries can occur.
II. Illegality
Right here is the sticking point! A doctor's medical intervention is usually a justification, if the patient has consented. However, this consent can only be given (effectively) if the treating physician or gem. § 1 HeilprG is a naturopath. This has been recognized since the 60 years.
I would also like to share with you the excerpt from the Criminal Law Commentary:
The consent of the patient generally requires a medical explanation (st. Rspr. Since RG 66 181, RGZ 168 206; for the development and justification see, inter alia, A / W-Weber 6/102 (originally for the purpose of recording the medical outsider), German VersR 81, 293 ff., Geilen loc. Cit. 50 ff., Giesen, Arzthhaftungsrecht 165 ff., Kern / Laufs loc. Cit., Knauer loc .; Schreiber BGH-FG IV 225 ff., Ulsenheimer loc. Cit. Rn 45 ff., Grdl. Francke / Hart loc. Cit .; Tag op JRE 23, 513 ff. And Uhlenbruck MedR 53, 265 ff. With further references.
(Schönke / Schroeder / Eser / Sternberg-Lieben StGB § 223 Rn. 40, beck-online)
Of course, it is important to differentiate between the laser types. For this I ask you to read my other articles. However, this is also due to the Ordinance for the Further Modernization of Radiation Protection LawThe Bundestag happened on 06.09.2018 to have done in the future.
The § 313 BGB (disruption of the business basis) in turn regulates the civil law relationships between the individual contracting parties.
I hope I could clarify the difference and clarify that § 223 StGB may not be lumped together with § 313 BGB.
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Dear sir Hendel,
Thank you for your explanations.
Of course, this is about the § 313 BGB and it is inexplicable to us how this has come to this confusion.
Dear sir Hendel,
I think that with the § 313 BGB will not work, because every user is well known that he is a non-physician in a legally seen gray area and I can not afterwards on complete ignorance (or sudden / unpredictable Fault of the business basis) plead. Which judge should one buy this story? So I could buy an ice cream stand in the summer as well and in the winter I could complain about a disruption of the business basis. Reason: In the summer was unfortunately not foreseeable that after the summer again the winter comes with absolutely unreasonable sales. Similarly, everyone in Germany knows that such laser treatments in medical hands belongs, I move in a legal gray area and therefore I can certainly not plead on the § 313 BGB here.
Or do you seriously believe that you can succeed in court with total ignorance?
Or you think, you could at least try it and if it does not work with the § 313 BGB, then I am at least a little richer in experience.
With kind regards,
Tattoo News
Dear Ladies and Gentlemen of Tattoo News,
but also on the basis of § 313 BGB lags your comparison with the ice cream. Thus, the applicability of § 313 BGB in case of legislative changes have long since been confirmed by a supreme court (see BGH NJW 1985, 1833 [1835] concerning the liberalization of divorce law and marriage contract; NJW-RR 2000, 1560 concerning abolition of the compulsory tariff in road haulage; 2000, 3645 [3646] concerning penalty and injunctive relief, OLG Dresden NJW 2000, 3432 concerning training contract and legal change of job description, OLG Saarbrücken NJW 2012, 3731 concerning uneconomic contract for solar plant due to amendment of the EEG, MüKoBGB / Finkenauer Rn. 231 BeckOGK / Martens Rn. 235 ff.)
In this respect, a procedure - in the present case of a change in the law - with reference to § 313 BGB has nothing to do with the fact that one relies on total ignorance. Perhaps it also helps to clarify that a claim can be based, inter alia, on § 313 BGB (and not exclusively). The chances of a contract adjustment are in any case very good.
I hope I have been able to help you with this information.
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Dear sir Hendel,
Thank you for your explanations to §313.
A feasibility of the §313 is not doubted in any way, but predictable changes do not justify any rights from §313.
With kind regards,
Tattoo News
Dear Ladies and Gentlemen of Tattoo News,
I like to discuss with you. However, I ask you to support your legal opinion with case law or literature opinions. Otherwise, it's just your opinion.
I have always provided you with jurisprudence about my legal opinion. In that sense I think that I can expect this too.
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Dear sir Hendel,
You write that you should use a picosecond laser if you are neither a naturopath or a doctor.
Is this still valid after the entry into force of the new Radiation Protection Law?
Is it possible to continue working as a non-physician with a picosecond laser as of 2019?
Yours sincerely,
Christian Moeller
Dear Mr. Möller,
my statement regarding a picosecond laser is based on physical considerations, which, however, has not yet been judged by the highest court. After the entry into force of the new regulation, nothing will change in the first place. Only starting from the 31.12.2020 it will come (according to current legal status) to changes. From then on, only doctors are allowed to remove tattoos for cosmetic purposes.
With kind regards,
Stephan Hendel
Lawyer
Good day,
I run a laser studio to remove hair and tattoos. According to the new law, tattoo removal from 2020 will only be withheld from doctors. My question would be:
1. Does that mean that the removal of tattoos by naturopaths is also prohibited?
2. Can I take a doctor as a partner, who performs the tattoo removal and bills privately, if he does not otherwise provide any other medical / medical services?
Vg,
Stein
Good day,
to your questions:
To 1. Yes, cosmetic tattoo removal will be reserved for doctors. However, there are ways in which you, as a naturopath, can continue medical tattoo removal. If you have any questions, you can always contact us by phone.
To 2. No, you can not hire a doctor as a non-physician, §§ 24 para. 7; 32b Admission Ordinance for Contract Physicians (Ärzte-ZV).
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Hello, I have questions, is it possible to remove with laser eye lines? Thank you very much
Dear Mrs. Vlkova,
this is certainly possible. However, the question is whether it is medically safe. For this I would ask you to contact your tattoo remover.
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Dear Sir or Madam,
I am a licensed dentist and am interested in tattoo removal as a second pillar. Does the legislature differentiate between licensed doctors and dentists? Should I expect restrictions?
After all, the laser application in dentistry is also widespread.
Thank you for your answer, Sincerely, JL
Thank you for your request! The question is indeed justified and somewhat controversial, since the wording of the regulation only speaks of doctors (in general). In my opinion, you should also remove tattoos as a licensed dentist. For the purpose of the NiSV is to protect the patient from untrained laser users (in addition to many other regulations). With approved dentists a conclusion on the medical qualification is to be given in each case.
With kind regards,
Stephan Hendel
Lawyer
Fork & Hendel
Lawyers PartmbB
Bajuwarenstr. 2e
93053 Regensburg
0941-307 948 90
Good day Mr Hendel,
I've been following your blog for a while now - thanks for the work-up.
I have a question that cannot be found in the regulation:
Can licensed dentists with laser training be able to remove tattoos in the future? Are there clear regulations or judgments on this?
Thank you very much
Best Regards
Hello Mr. Röpe,
this is actually not regulated “nicely” in the NiSV. According to our legal opinion, this is also permissible for dentists. Because these have been using - permissible - dental lasers for years, which have an even greater hazard potential. The sense and purpose of the NiSV is that work with such lasers comes into trained and competent hands. This is the case with licensed dentists as well as with doctors.
Best Regards
Stephan hendel
Lawyer