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.
In addition to the nanosecond laser, picosecond technology has recently become available - also known as the PicoSure laser. This ultrashort energy pulses are delivered with a pulse duration of trillionths of a second into the skin. In contrast to the nanosecond laser, the pulse width is only one hundredth of a second. Because of this significantly faster and shorter Pulsrhytmik the tattooed particles are processed even more accurate and thus broken down into very small parts. Consequently, the risk of injury from a picosecond laser is much lower than that of a nanosecond laser.
This new technology allows an ultra-short pressure wave with a wavelength of 755nm - 532nm to penetrate the skin. The decisive difference to nanosecond technology is that the (otherwise) usual heat shock does not act in the dermis, but the above-mentioned pressure wave. Due to the lack of heat, the risk of side effects (e.g. burns) is so drastically reduced that it can also be used by non-medical practitioners or non-medical practitioners.
This follows from the fact that the application of the laser device - as already mentioned above - can also cause significant damage to health. For tattoo removal by means of nanosecond lasers, devices of the laser class 4 in the sense of § 2 para. 3 No. 5 of the accident prevention regulations BGV B2 - Laser Radiation - are often used. This means that the accessible laser radiation can be very dangerous for the skin. Thus, even in the unspecific use of this laser, the risk of significant damage to health.
If you now practice this (nanosecond) laser without the appropriate qualification, ie without being a naturopath or doctor, it is easy for your patients to sue you for damages. After all, every good lawyer makes use of your missing qualification for himself in order to at least intend to negligence in the context of, for example, § 823 para. 1 BGB. However, an even greater danger threatens from the §§ 280 BGB ff. Because according to § 280 para. 1 sentence 2 BGB you are not liable for damages only if you have your breach of duty, so the injury to your patient, not responsible. You must, however, actively lead this proof. If you can not show the appropriate qualification, ie be a non-medical practitioner or a doctor, this proof should be very difficult for you or not at all successful.
At the latest when one looks at the legal position under criminal law points, it shows how important the above statements are. Anyone who carries out such a treatment despite a lack of qualifications quickly commits a bodily injury in the sense of StGB § 223, In other words: imprisonment up to 5 years.
According to German criminal law, any treatment that interferes with the physical integrity of another person constitutes a bodily injury. Accordingly, the removal of a tattoo using a nanosecond laser also falls into the category of bodily harm, especially as a physical change is brought about. According to settled case-law, in principle every one that intervenes in bodily integrity also fulfills medical treatment the offense of assault. However, such a personal injury would be justified if the treatment with the Consent of the patient.
A criminal punishment then leaves. However, the approval of the patient or the client requires that he has been duly and completely informed of all risks and the legal situation.
Anyone who does not have the necessary qualification or the permissible equipment for a tattoo removal would not only have to inform the customer about the possible risks associated with the use of the laser - in the absence of appropriate medical training this will hardly be possible anyway - but also, that he is basically performing a treatment that is only permitted to doctors and alternative practitioners.
If he omits this information, the customer can not "validly" agree and the personal injury remains unlawful and thus punishable, so that the competent prosecutor's office faster than a preliminary investigation can be removed as the tattoo can be removed.
Basically, you have two options:
Since the picosecond technology is still very young, there is hardly any case law here in order to make a secure assessment of the legal situation.
However, our law firm will assist you with your project in legal terms, explain all risks and actively assist you in getting the necessary permits. We rely on an extensive network of doctors and non-medical practitioners and can even provide you with contact to existing tattoo removal studios.