Facing a lawsuit, judge reaffirms the legality of biomedical professionals working in aesthetics

At the heart of an ongoing legal controversy (case number: 5034777-31.2023.4.03.6100) is the dispute between the Regional Council of Medicine of the State of São Paulo (CREMESP) VS. FEDERAL COUNCIL OF BIOMEDICINE, REGIONAL COUNCIL OF BIOMEDICINE and DR. ANA CAROLINA PUGA, an aesthetic biomedicine professional, concerning the legality of biomedical professionals working in the aesthetic sphere, notably in performing aesthetic procedures and teaching related courses.

The issue at hand focuses on the interpretation of the Medical Act Law, which defines certain activities as exclusive to physicians, including aesthetic procedures such as the application of collagen biostimulators, PDO threads, PRP and PRF, body harmonization and botulinum toxin application.

It also covers legal interpretations of the validity and applicability of professional council resolutions, the distinction between invasive and non-invasive aesthetic procedures, and questions regarding the interests surrounding this public civil action.

Biomedicine's Activity Does Not Violate the Medical Act Law

The main question lies in determining the extent to which biomedical professionals, based on resolutions of their professional council, may perform aesthetic procedures without violating the activities exclusive to physicians, as established by the Medical Act Law.

What CREMESP is actually seeking with this move is to curtail the right of aesthetic biomedicine professionals to practice.

Contrary to CREMESP's assertions, the work of DR. ANA CAROLINA PUGA in aesthetic biomedicine is duly regulated. The resolutions of the Federal Council of Biomedicine (CFBM), which authorize biomedical professionals to perform aesthetic procedures, are valid and legitimate, and, consequently, DR. ANA CAROLINA PUGA is acting in accordance with the law.

Another important point is the distinction between invasive and injectable procedures, in which the defense showed that the procedures performed by DR. ANA CAROLINA PUGA are not invasive as defined by the Medical Act Law, since they do not enter natural orifices of the body to reach internal organs.

CREMESP's lack of standing to sue, as it lacks competence to deliberate on medical education matters, and DR. ANA CAROLINA PUGA's lack of standing as a defendant, as she should not appear as a defendant in the case because she is bound by the rules of her profession, are also exhaustively set out in her defense.

The frivolous allegation that DR. ANA CAROLINA PUGA's work caused harm to the community does not hold up, for the simple reason that her actions have always contributed to the field of aesthetic biomedicine and aesthetic health, whether by practicing or teaching.

The defense of DR. ANA CAROLINA PUGA even raises CREMESP's procedural bad faith, alleging the existence of an underlying corporatist interest behind the lawsuit, aimed at securing a market reserve for physicians to the detriment of the other health professionals legally qualified to work in the aesthetic field.

In a preliminary analysis, the judge denied the request for emergency relief filed by CREMESP, stating that the plausibility of the council's allegations had not been demonstrated. The decision stresses that the work of DR. ANA CAROLINA PUGA is duly regulated and that she has the necessary degree and specialization. In that sense, she is qualified to perform the aesthetic procedures.

The court merely recognized a right she won more than 15 years ago.

The judge also recognized a connection between this case and another case (case number: 0042020-06.2012.4.01.3400) brought by the Federal Council of Medicine, which concerns the legality of the resolutions issued by the CFBM, and ordered the suspension of the current case until the related action is concluded.

The decision emphasizes the procedural principle that seeks to avoid conflicting decisions by joining similar actions and illustrates this Court's caution in not issuing potentially conflicting decisions on the same subject, which, unfortunately, can already be seen in other identical cases.

The decision in question highlights the complexity of the debate over the work of health professionals duly qualified to perform aesthetic procedures, not only because it could significantly affect the field of aesthetics in Brazil, but mainly because it could have an impact on future case law in the fields of health law and aesthetics law.

Faculty member for the Aesthetic Law courses in Nepuga's courses and postgraduate programs, Dr. Victor Bellini also commented on the case:

The Medical Council, in yet another attempt to silence the class of aesthetic health professionals, has failed. At the end of 2023, CREMESP went to court to curtail my right to practice and to teach health professionals to perform injectable procedures, claiming that such procedures are exclusive to physicians. A practice I have defended and taught for more than 15 years, as a pioneer in this field.

Since we won the right to work in the field of aesthetics and were freed from submission, exhausting workloads, on-call shifts and humiliations, a persecution began, because many did not accept our freedom.

What CREMESP is seeking with this move is to curtail the right of all aesthetic health professionals to practice, and to take away our right to work independently and without subordination, which they have not accepted until now.

However, in a decision published today, the judge responsible for the case understood that injectable procedures can indeed be performed by health professionals and that our practice is backed by the resolutions issued by our professional council, without depending on any other profession telling us what we can or cannot do.

The court merely recognized what is ours by right. The decision can still be appealed, but we will remain firm in the fight for the rights of all aesthetic health professionals, as I have always done until now. An interlocutory appeal (agravo de instrumento) is still possible, to try to obtain the injunction from the appellate court.

Health professionals, after years of struggle, won the right to grow professionally and became independent of the medical profession.

This achievement caused a certain outrage among a portion of the medical profession, which began to mobilize its forces to prevent other professionals from working freely and achieving their financial and professional freedom.

In recent years, the medical profession's council has been mobilized as a tool to inhibit the work of other professionals, under the false argument that health professionals could not perform injectable procedures, since these are considered acts exclusive to physicians.

In one of these attempts, the council sought to curtail the right of the Mother of Aesthetic Biomedicine, Dr. Ana Carolina Puga, to teach and perform procedures that biomedical professionals have been performing for over a decade.

A failed attempt. In this case, the judge responsible for the matter understood that the work of biomedical professionals is legitimate, being backed by the professional council's resolutions.

Our fight is to guarantee professionals' freedom and their right to work freely, being independent of any other profession.