Business processes and medicine: confusion doesn't mix
.webp)
The decision of the Council of State of 13 June 2025 (Council of State, United Chambers, June 13, 2025, 463831) is a strong reminder of the ethical requirements weighing on medical practice in premises shared with commercial companies. By cancelling a disciplinary decision relating to an ophthalmologist working in a clinic adjacent to an optical store, the High Court underlines the prohibition of confusion between medical activity and commercial activity.
Medicine is not a business and the direct use of commercial processes by doctors is prohibited (1). This vigilance must also apply to the sharing of premises between health professionals and commercial actors (2).
1. The use of business processes to the test of ethics
Pending the possible adoption of the law to combat medical deserts currently under debate in Parliament, freedom of establishment and practice remains the principle for self-employed doctors.
Nevertheless, several ethical principles govern the methods of installation and practice of medical professionals. These principles aim in particular to guarantee the quality of care and, above all, the independence of practitioners.
The Code of Medical Ethics imposes strict obligations on doctors, in particular with regard to independence, professional dignity and the prohibition of any practice that could compromise the quality or objectivity of care. In the context of cohabitation with commercial activities, several articles are particularly relevant.
First of all, article R.4127-19 of the Public Health Code provides that” Medicine should not be practiced as a business ”.
In application of this text, the physician must refrain from any practice that could be considered commercial. This includes not making any promotional offers on the medical procedures that he performs or not maintaining confusion between his activities as a doctor and his ancillary commercial activity.
In particular, a doctor could be sanctioned by the Council of the Order of Physicians because he had installed a” large display containing, in addition to its name and telephone number, the following information: “Consultations. Gynaecology. Pregnancy follow-up, by appointment. Sports medicine, Saturday morning by appointment ” (Council of State, September 11, 2012, no. 4629).
It should be noted that in addition to the oversized nature of the display, this doctor did not have a qualification in medical gynecology, which may have played a significant role in the decision of the Council of State.
However, it is not certain that the Council of State would adopt the same decision today.
In fact, by a landmark decision of 6 November 2019, the Council of State called into question the absolute and general ban on all forms of advertising that was imposed on doctors (Council of State, 4th - 1st chambers meeting,06/11/2019, 416948).
A medical professional can now advertise certain indications in order to allow the patient to be well informed about the care provided and to exercise their free choice.
The National Council of the Medical Association has issued a list of recommendations concerning the communication of doctors and which can be used as a reference in the event of disciplinary proceedings.
Under the aegis of this new regulation, a doctor was however sanctioned for having put in place signage during his installation, which included” signs, on the front of the pharmacy next to his office, specifying the hours of his office and a mention “open medical office” scrolling on the luminous cross of this pharmacy ” (National Disciplinary Chamber of the Order of Physicians, January 25, 2022, No. 13549).
Vigilance is therefore always required in terms of signage and, above all, in interaction with pharmacists, at the risk of being condemned on the basis of contempt (Article R.4127-23 of the Public Health Code).
The medical professional must also be vigilant as to the exercise that is carried out in his name even by another natural or legal person and must not allow a private company to use his name or professional activity for commercial purposes.
In practice, the doctor must therefore ensure that no advertising, which would be made by a third party or a company with which he has a relationship, mentions his name.
It was thus able to be judged by the disciplinary chamber that a discount coupon offered by a center located in Paris did not constitute illegal advertising since it did not include the direct name of the doctor in question (National Disciplinary Chamber of the Order of Physicians, January 13, 2022, No. 13789).
According to the disciplinary chamber,” It appears from the presentation of the ABC coupon that it contains neither the name of Dr. A, nor the address of his office in Aubervilliers, nor his telephone number, but only those of the XYZ center and his Paris address. ”.
However, such a decision may seem surprising even though the coupon included the telephone number of the doctor being sued. However, the disciplinary chamber seems to consider that in the absence of a direct link with the doctor, the ethical breach could not be accepted.
Conversely, it was considered that letting websites or various magazines spread flattering indications such as” the first-class results have brought him fame and recognition all over the world ”, or even” internationally recognized aesthetic doctor (...) considered as the best aesthetic doctor in Paris ” was commercial advertising that undermined the dignity of the profession (National Disciplinary Chamber of the Order of Physicians, 7 April 2023, No. 14663 bis).
In another decision, it was possible for the disciplinary chamber to rule that:
” Dr. A had no control over the advertising or information actions decided by the company XYZ, having no participation or management function in that company, and that no clause in the contract between her and that company provided for his consultation on the processes thus used, let alone the possibility of opposing them. Consequently, and since it is not alleged that his name and position were explicitly included in the inserts mentioned by the first judges ”.
Two elements therefore seem fundamental to avoid qualification as a commercial process:
- The absence of explicit mention of the name or of any element allowing the identification of a doctor;
- The absence of control by the doctor over the publication made: the doctor must not be associated with the structure that carries out the communication, should not have a contract providing for a right of control over this publication;
A physician must therefore be careful not to use commercial procedures that may be contrary to the ethical principles that apply to him. This attention must be further strengthened when the doctor is required to share premises, either with other health professionals or in commercial premises.
2. The difficult cohabitation between medical practice and commercial premises
The ethical obligations of medical professionals require compliance with strict conditions for the occupation of premises and to avoid confusion with commercial activity.
For example, medical professionals cannot carry out their activities in a fairground and must have premises adapted to their methods of practice.
The rule set out in article R.4127-25 of the Public Health Code is simple:
” It is forbidden for doctors to provide medical consultations, prescriptions or advice in commercial premises or in any other place where drugs, products or devices that they prescribe are sold wherever they use ”.
The ban is twofold:
- The doctor cannot practice in commercial premises;
- The doctor cannot practice in a place where the drugs, products or devices that he prescribes or uses are marketed;
However, while such a provision does not seem to raise any particular subject, the devil is often hidden in the details.
Indeed, a premises becomes commercial in particular when it is used for an industrial, commercial or craft activity and when it is used to operate a business.
A premises will therefore be able to be qualified as commercial if a commercial activity is carried out there and in particular if the premises are used to sell medicines, or parapharmaceutical products or if services that are not related to care are provided there.
A doctor will therefore not be able to practice his art alongside a company that markets health products, regardless of whether he is likely to market them or not.
A subtlety, however.
If a doctor cannot practice in commercial premises, he can, on the other hand, carry out his activity in a premises that would be located within a real estate complex that may constitute commercial premises for him.
In other words, a medical professional can carry out his activity in a structure that has a commercial vocation even though the premises in which he works is clearly identifiable and quite distinct from this set. The premises must respect ethical obligations in terms of presentation, especially in terms of advertising or displays.
In particular, the CNOM disciplinary chamber was able to consider that:
- Exercising on the technical platform provided by an aesthetic center on which only medical procedures are performed does not fail to comply with the provisions of article R.4127-25 of the CSP (National Disciplinary Chamber of the Order of Physicians, October 25, 2019, No. 13417);
- The fact of using the equipment of a hair removal company on an ad hoc basis for cryolypolysis or tattoo removal of some of its patients does not constitute a breach of the provisions of article R.4127-25 of the Public Health Code (National Disciplinary Chamber of the Order of Physicians, 6 May 2022, No. 14308);
- The fact of using the technical platform provided by a company managing an aesthetic center without operating in the commercial premises of this company (National Disciplinary Chamber of the Order of Physicians, October 21, 2021, N13860);
However, all these decisions are not the most terse on the criteria for assessing the existence of such a breach and on the shared practice of doctors in commercial premises.
The commented decision of the Council of State is therefore welcome.
In 2022, the CNOM disciplinary chamber received, on appeal, an appeal against a decision of the Rhône-Alpes First Instance Chamber of 21 December 2017.
A doctor was the subject of a complaint from the Departmental Council, which accused him of several grievances, in particular that of working in commercial premises.
This doctor, an ophthalmologist, had concluded a contract of employment with a company practicing the profession of optician-eyeglass manufacturer to practice refractive surgery on 1Er floor of the real estate complex belonging to this same company. The latter operated an eyewear store on the ground floor.
The disciplinary chamber of 1era court and appellate courts both considered that there was no violation of article R.4127-25 of the Public Health Code on the ground that, on the one hand, the doctor did not prescribe and did not use the products marketed by the company he employs. And on the other hand, access to the premises was distinct from that of the eyewear store and was subject to separate indications on the street (National Disciplinary Chamber of the Order of Physicians, 8 March 2022, No. 14157).
The Council of State was then seized of an appeal at the request of the CDOM du Rhône, which considered, among other things, that the doctor had practised his art in a commercial space.
Taking the opposite view to the disciplinary chamber of the CNOM, the Council of State considers that:
” the front of the optical store and that of the refractive surgery clinic, on the facade of the building visible from the street, maintained, by their mentions and the typography used, a confusion between the company's optical trade and refractive surgery activities. It also appears that an elevator - admittedly, which could only be operated by the staff of the optical store - allowed customers and patients to access the refractive surgery clinic directly from the optical store ” (Council of State, United Chambers, June 13, 2025, 463831).
The Council of State therefore ruled that, despite the existence of an access separate from that of the optical store, the facade and the signage created confusion between the commercial and medical activities of the clinic. The court also considers that the presence of an elevator, accessible from the optical store, allowing direct access to the refractive surgery clinic, reinforced this confusion for patients.
For the Council of State, without this being clearly specified by the decision, the interior and exterior layout of the refractive surgery clinic and the optical store testifies to a sufficiently strong and close relationship that should lead to qualification as commercial premises.
By refusing to consider that the doctor had carried out his activity in commercial premises, the CNOM disciplinary chamber therefore committed an error of law.
This decision recalls the severity of the prohibition for a doctor to practice in commercial premises, even if the access is separate or if the doctor does not prescribe products sold on site. The Council of State insists on the importance of external appearance and the absence of any possible confusion between medical and commercial activity.
Should we conclude that the practice for a doctor in a real estate complex constituted in commercial form is now prohibited? That does not seem to be the case.
However, such a decision seems to go back on the previous case law of the CNOM disciplinary chamber cited above, which was content with separate access or the simple use of the technical platform made available, without really considering whether the organization between the various premises is likely to create confusion in the patient's mind.
This ruling raises important questions about the possibility for doctors to share premises with commercial companies.
Particular vigilance is therefore essential in the event of such sharing and concrete arrangements will have to be implemented in order to avoid any ethical risk.
Mathieu Gautier, partner
.png)
