February 18, 2018

When is an activity within the scope of a restricted practice?

Health Law
Professional Regulation

One of the more challenging issues that professional regulators can face in protecting the public from unauthorized practitioners is ambiguity as to whether an activity constitutes a restricted activity or practice. Some activities are obvious, like heart surgery, but other are not.  In the recent case of the College of Physicians and Surgeons of BC v Tan, 2017 BCSC 2233 (Tan), the College sought a permanent injunction against Ms. Tan, a non-physician, and her spa business from advertising and performing mole removal services. The evidence in the case indicated that mole removal services are routinely offered by spas and beauty centres, and that an injunction against the respondents could have widespread impact on such businesses.

The primary issue was whether mole removal services are a restricted activity that only physicians may perform.

The Court relied heavily on an expert report advanced by the College which described the process of mole removal and its possible medical risks. The report, authored by a physician who was a dermatology specialist, explained that mole removal techniques can vary, from laser and chemical removal therapy, to remove pigments to complete surgical excision. [10] Asked to describe the dangers of mole removal by non-physicians, the report opined that persons without proper training would be unable to determine if a mole has melanoma transformation potential, which could cause it to develop into skin cancer. [10] Further, improper treatment of a mole could alter its appearance, making it difficult for a later physician to diagnose skin cancer, raising the risk of late or missed diagnoses. [10]

On the basis of that evidence, the court had little difficulty in finding that assessing, diagnosing and treating a patient for a mole, including mole removal, constitutes the practice of medicine. [11] The court ordered a permanent injunction prohibiting the respondents from advertising, performing and charging for mole removal services.

A brief comment by the court illustrates, however, the difficulty of discerning which activities are restricted and which are not.  The court commented that diagnoses or assessments on their own may not constitute the practice of medicine: “diagnosis, or assessment, viewed in isolation, and in the broadest sense, may not necessarily be a service that only a registrant of the College may perform before anyone at a laser and spa clinic begins any treatment.”  The Court gave as an example a clinician, before removing a birthmark, diagnosing or assessing that what is to be removed is a birthmark. [11]The court concluded that further expert evidence and detailed argument would be needed to address, for example, whether the practice of medicine includes the diagnosis or assessment of a birthmark.

College of Physicians and Surgeons of BC v Tan, 2017 BCSC 2233