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Injunctions an effective tool to tackle unauthorized practice

Court injunctions are a good alternative to prosecution for regulatory bodies attempting to stop unlicensed practitioners, Burlington health lawyer Cathi Mietkiewicz tells AdvocateDaily.com.

The CBC recently reported on the 30-day suspended sentence handed out to a B.C. woman for carrying out unlicensed Botox and dermal filler injections.

Rather than initiating a prosecution led by the provincial Crown, the story says B.C.’s College of Physicians obtained an injunction against the woman, ordering her to stop passing herself off as a doctor, and refrain from carrying out procedures she was unqualified to do.

According to the CBC, her 30-day sentence was actually a punishment for contempt of court after she was caught violating the March 2018 order obtained by the College. As part of her sentence, the woman will also serve two years' probation and is required to pay a $4,700 fine to the court.

Mietkiewicz, principal of Mietkiewicz Law, says the approach taken by the College in this case is an increasingly popular option for regulatory bodies in the health sector.  

“On the surface, it appears all you’re doing is telling someone to stop breaking the law, but it actually has a huge impact, because the message is coming from the court, rather than in a letter from the College,” says Mietkiewicz, who frequently advises regulators on a variety of issues.

In most cases, she says an injunction is enough to scare off the subject from further rule-breaking, but when contempt motions are required, she says the penalties handed out by courts are often even heftier than those allowed under the laws governing the professions.  

“At the end of the day, the College’s aim is not to prosecute a person or get them to pay a fine — it’s to protect the public by getting them to stop their behaviour, and this route is very effective at doing that,” Mietkiewicz says.  

According to the CBC, the B.C. woman allegedly went by various aliases and used a forged medical licence to convince spas that her practice was above board, injecting dermal fillers into clients in their cars, homes or at Botox parties.

A College spokesperson told the news outlet that it spent four years trying to shut her down in a long protracted game of “whack-a-mole.”

"She'd be somewhere and then we'd close in and then she'd pop up somewhere else … we won't stop until individuals doing illegal work are stopped," the spokesperson said, suggesting anyone who was treated by the woman should seek medical advice.

A former patient of the woman also told the CBC he was still suffering from pain more than a year on from her injection of an apparent dermal filter, and that it feels like there is a "noodle in his lip."

Mietkiewicz says regulatory colleges tend to adjust their approach depending on the risk of harm an unlicensed person poses to the public.

“If someone is holding themselves out as a member of a professional body, they will first send them a cease-and-desist letter, and often that’s enough,” she says. “If it’s something more dangerous, as appeared to happen here, then a simple letter will probably not go far enough. Ultimately, the goal is to get them to stop.”

Many regulatory bodies over time have expanded their role, which traditionally was confined to regulating their own members, to include cracking down on unauthorized practice, Mietkiewicz says.

“They have taken on that job as part of their public protection role because nobody else is better placed to do it, and when they become aware of someone impersonating a member, they take it very seriously,” she says.

“This was a very extreme case, but I think it’s a good example of the way regulatory bodies should be handling this kind of matter. They seem to have gone to a great deal of effort and expense to verify the allegations against her, and the level of risk to the public certainly justifies the resources put in," Mietkiewicz says.

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