Law

 As noted in “introduction”, permanent makeup treatment is a medical practice in Japan, and only doctors or nurses under the direction of a doctor can perform this.

 This was recognized in 2000. Based on questions from the National Police Agency to the Ministry of Health, Labor, and Welfare. The full text is transcribed below.

Questions about the Medical Practitioners Act (inquiry)

(May 18, 2000) (National Police Agency Chosei Kankan No. 110) (Notice to Director of Health Policy Bureau Medical Affairs Division, Ministry of Health, and Welfare)

 I would like to ask your ministry's view on the issue of headline, as I have the following doubts.

 Record

1 Outline of the case

(1)   A beauty salon employee who does not have a doctor's license uses a medical laser hair removal device to remove unwanted body hair such as arms, legs, sides, bikini line, etc., and interviews patients who come to the store. After checking the constitution, put the patient on the treatment table, disinfect the hair removal area with ethanol for disinfection, shave the body hair with a razor, and then have the patient wear UV protection glasses dedicated to the laser to protect the eyes. After covering with a towel, etc., the employee himself/herself wears UV protection glasses dedicated to laser or goggles for laser and irradiates the laser heat to the hair root part, destroys the hair papilla, sebaceous gland apertures, etc. and removes hair. Ice gel is applied to the affected area to cool it, and then a drug such as xylocaine, which has a sedative effect, or an anti-suppurative drug is applied to the affected area.

(2)   A beauty salon employee who does not have a doctor's license interviews patients who come to the store and shapes the eyebrows and eyeliner with an eyebrow pencil. Using a permanent makeup device with a needle attached, apply pigment to the tip of the needle while applying pigment such as ink to the surface of the skin, then cool the affected area with ice gel and apply xylocaine, which has a sedative effect. etc., and anti-suppuration drugs are applied to the affected area.

(3)   When a beauty salon employee without a doctor's license asks patients who have come to the store, lays them down on the treatment table, and performs epidermal peeling (chemical peeling) such as spots, freckles, moles, bruises, wrinkles, etc. After applying the AHA peeling solvent (fruit acid or glycolic acid) chemical to the skin of the entire face with a brush, leave it for 5 to 10 minutes and apply the AHA peeling neutralizer while observing the oxidation state of the skin. Then, cleansing cream is applied and the peeled skin is wiped off. For pain patients, AHA peeling neutralizer is applied to stop the oxidation reaction and the treatment is discontinued.

2 questions

(1) About (1) of case outline 1

 Is it correct to assume that the act of a non-doctor employee operating a medical laser hair removal device to remove hair is in violation of the medical practice stipulated in the Medical Practitioners’ Act?

(2) About (2) of case outline 1

 Is it acceptable for a non-doctor employee to use an electric permanent makeup device to apply pigments such as black ink to the surface of the skin as a violation of the medical practice stipulated in the Medical Practitioners’ Act?

(3) About (3) of case outline 1

 A non-doctor employee applies chemicals such as fruit acid to the skin to remove spots, freckles, moles, bruises, wrinkles, etc. on the patient's skin and performs epidermal peeling (chemical peeling). Is it acceptable to interpret the conduct as violating the medical practices prescribed in the Medical Practitioners’ Act?

 The Ministry of Health, Labor, and Welfare's reply to this is as follows.

○ Concerning doubts under the Medical Practitioners’ Act (Response) (June 9, 2000) (Medical Affairs No. 59) (Notice to the Director of the Living Environment Division, Community Safety Bureau, National Police Agency)

I would like to reply as follows regarding the subject of your inquiry in the National Police Agency Chosei Kankan No. 110 dated May 18, 2000.

Record

All (1) to (3) fall under medical practice if the act of inquiry is carried out as a business.

 Furthermore, in 2001, the Ministry of Health, Labor and Welfare issued the following notification.

○ Regarding the handling of hair removal by persons without a medical license (November 8, 2001) (Medical Policy Issue No. 105) (Attention to each prefectural health department (bureau) director notification)

 Recently, there have been reports of bodily injuries caused by depilation, etc., performed by persons without a medical license, and the situation cannot be overlooked in terms of health and hygiene.

 Regarding these acts, the opinion on the application of the Medical Practitioners’ Act is presented in the "Regarding Doubts under the Medical Practitioners’ Act" (Notification No. 68 of the Medical Affairs Division, Health Policy Bureau, Ministry of Health, and Welfare, dated July 13, 2000). To prevent the occurrence of harm to the public, we have decided to thoroughly implement the following again.

Record

Section 1. Application of the Medical Practitioners’ Act to hair removal, etc.

 The following acts are dangerous in terms of health and hygiene unless performed by a doctor, and if performed as a business by a person without a medical license, they violate Article 17 of the Medical Practitioners’ Act.

(1) Irrespective of whether the equipment used is for medical use or not, irradiating laser beams or other light beams with strong energy to hair roots to destroy hair papillae, sebaceous gland openings, etc.

(2) Applying pigments such as ink to the surface of the skin while applying pigments to the tip of the needle.

(3) Applying chemicals such as acid to the skin to remove wrinkles, blemishes, etc.

Section 2 Guidance, etc. for violations

 When received information about a violation, investigation of the actual situation and provide of necessary guidance such as recommending the immediate cessation of the act should be done. Moreover, in malicious cases, such as no improvement despite guidance, appropriate cooperation with the police should be done, keeping in mind the accusation based on the provisions of Article 239 of the Code of Criminal Procedure.

 Against this background, many permanent makeup treatments by non-medical personnel were subsequently exposed. For example, in 2015, a doctor who had an esthetician apply permanent makeup at a dermatology clinic was arrested along with the esthetician. Even if the treatment is performed at a clinic, if the doctor himself does not perform the treatment, it is a violation of Article 17 of the Medical Practitioners Act.

Medical Practitioners' Act

Article 17 No person except a medical practitioner may engage in medical practice.

Article 31 (1) A person who falls under any of the following items is punished by imprisonment with work for not more than three years, a fine of not more than one million yen, or both:

(1) a person who violates the provisions of Article 17.

(2) (omitted)

 “Medical practice'' means “performing medical treatment as a business,'' and “performing as a business'' means “repeating and continuing that treatment''.

In addition to the criminal penalties listed in Article 31 of the Medical Practitioners Act, there are administrative penalties. The doctor above mentioned has been suspended from medical practice for two years. Without thinking much about it, he probably rented a place for permanent makeup to an unqualified person, but the price is high.

 On the other hand, nurses can perform permanent makeup treatments. The legal basis for this is Article 37 of the Law for Public Health Nurses, Midwives and Nurses.

Act on Public Health Nurses, Midwives, and Nurses

Article 37　Except the cases where a public health nurse, midwife, nurse or assistant nurse is instructed by the attending physician or dental practitioner, she/he may not use medical equipment, give a person medicine or give instructions about medicine or take any other medical practice that may harm person's health unless it is done by a physician or dental practitioner.

 (Omitted below)

In this way, nurses can perform certain medical practice under the “instruction” of doctors. Permanent makeup treatments are currently interpreted as being within this range.

 However, the doctor's instruction is necessary, and in this case, the “instruction” must be in the presence of the doctor. Even if a nurse “has received a doctor's instruction,” if the nurse performs the treatment alone in the absence of the doctor, it is a violation of Article 37 of the Public Health Nurses, Midwives and Nurses Act. It is natural to think that nurses alone cannot respond when something happens. In fact, in 2014, there was a case where a nurse was exposed for applying permanent makeup alone.

On websites that explain permanent makeup, it is sometimes written that “nurses can perform treatments under the supervision of a doctor”. But strictly speaking, this is wrong. Instructions are ”to give orders to do something” and “to indicate procedures and arrangements” whereas supervision is “monitoring whether or not it is appropriate for achieving a certain purpose, and issuing instructions and orders when necessary.” Instructions indicate stronger intervention.

In addition, even assistant nurse can perform permanent makeup treatment. According to Article 5 of the Act on Public Health Nurses, Midwives, and Nurses, ”nurse” is a person who, under license from the Minister of Health, Labor and Welfare, provides medical care and assists medical care to the sick or injured.  

 According to Article 6, an “assistant nurse” is “a person who has obtained a license from the prefectural governor, received instructions from a doctor, dentist, or nurse, and performs the activities stipulated in the preceding article. The contents of the work that can be done as long as they receive instructions are the same as those of nurses.

Can a dentist perform permanent makeup? According to Article 37 of the Act on Public Health Nurses, Midwives, and Nurses, it seems possible under the direction of a dentist. However, in the first place, the medical practice that a dentist can perform is limited to the treatment of teeth in the oral cavity. Injections can be done, but they are limited to the area related to the dental business, and permanent makeup of eyebrows and eyeliner is not allowed because it is not related to dentistry.

Therefore, permanent makeup cannot be performed at a dental clinic, and nurses cannot perform permanent makeup even if instructed by a dentist. It is a violation of the Medical Practitioner Act.

Finally, I would like to summarize the relationship between permanent makeup and tattoos. As noted in the “Introduction”, the Supreme Court decision in 2020 upheld the previous high court decision that “tattoos are not medical procedures, but permanent makeup is medical procedures.” The judgment of the High Court is as follows.

“The concept of permanent makeup is not always the same, but it is mainly a procedure in which pigment is injected into the eyebrows, eyeliner, and lips with a needle attached with pigment for the purpose of beauty and to make bruises, spots, burns, etc. less noticeable. Many of these cases are subsumable in the above concept of cosmetic surgery, and it should be possible to judge that permanent makeup is a medical practice within the category of cosmetic surgery. As will be seen later, it should be said that tattooing, which have no medical relevance at all, cannot be discussed with permanent makeup in the same way.”

Permanent makeup and tattoos are the same as “the act of putting pigments such as ink on the surface of the skin while applying pigment to the tip of the needle”, but in the case of permanent makeup, it is “in the category of cosmetic surgery” and “medical relevance” is recognized. So, it is judged as a medical act.

On the other hand, tattoos are “social customs with decorative or symbolic elements and artistic significance”, so they have no “medical relevance” and are therefore not medical practices.

Then, for example, if you apply decorative eyebrows with a needle and pigment as shown in the figure below, it is a tattoo, and if you draw ordinary eyebrows with ordinary black or brown, it is permanent makeup and medical practice.

Figure 1

Examples of decorative eyebrows and eyeliner. Copies of images found on the internet.

 Permanent makeup is regarded as a medical act because the administration has cast the safety management of permanent makeup as the responsibility of medical personnel. In that case, since tattooing is not considered a medical practice, the administration should strictly control the anesthesia and pigments used in tattooing, shouldn’t it?

 The reason why permanent makeup was originally interpreted as a medical act and was cracked down was because there were many trouble consultations with the National Consumer Affairs Center after permanent makeup. If similar consultations about tattoos increase in the future, the government will start to act.