The Dekagram: 4th September 2023

Articles, News | Mon 4th Sep, 2023

This week we bring news of another government consultation, this one relating to the licensing of non-surgical cosmetic procedures in England and Wales. This is something the team has been discussing even since before Dominique Smith wrote her book on cross border clinical negligence (still available at all good bookshops). Will the government legislate in this area? And if it does, will that impact the increasingly problematic cross border industry? We’ll update our readers as the consultation progresses.

Non-Surgical Cosmetic Procedures: Whither and Whether?

Recent years have witnessed a growing prevalence and normalisation of non-surgical cosmetic procedures. This has been associated with the rise of social media, the increasing accessibility and affordability of high street providers and aesthetic clinics and the advancement of technologies and products applied in this field. Procedures such as botulinum toxin (commonly known as Botox) anti-wrinkle injections, cosmetic fillers (commonly known as dermal fillers), chemical peels and energy-based treatments are growing in popularity, with new unlicensed procedures rapidly emerging onto the market. Evidence suggests that most non-surgical cosmetic procedures are carried out by private providers and therefore subject to both tortious and contractual liability.

In April 2022, the Health and Care Act gave the Secretary of State for Health and Social Care the power to introduce a licensing regime for non-surgical cosmetic procedures in England. The purpose of the scheme is to ensure that consumers who choose to undergo a non-surgical cosmetic procedure can be confident that the treatment they receive is safe and of a high standard.

The current regulatory framework places few restrictions on who can perform non-surgical procedures. The aesthetics industry comprises both regulated healthcare professionals (including nurses, designated allied health professionals, dentists, doctors and pharmacists) and aesthetic practitioners such as beauty therapists.

There are existing training standards for practitioners, such as the National Occupational Standards (NOS) in beauty aesthetics, in addition to competency frameworks developed and held by professional bodies, but (perhaps surprisingly) there is no legislative framework to mandate that all practitioners are required to meet both training and infection control standards in order to carry out procedures.

The current regulatory framework comprises a patchwork of legislation, giving rise to significant inconsistencies between areas of practice and even geographical areas within England. The following legislation is relevant in this context:

• the Local Government (Miscellaneous Provisions) Act 1982 allows (but does not require) local authorities to put in place arrangements for the registration of certain cosmetic treatments, including cosmetic piercing, electrolysis, tattooing and semi-permanent make up, in addition to acupuncture. Some local authorities have also created byelaws relating to staff hygiene and the safety and cleanliness of the premises, furniture, and equipment;

• a small number of local authorities in England have also introduced local licensing schemes which vary in the number and type of treatments they cover. These include:
  • Nottingham (under the Nottinghamshire County Council Act 1985);
  • Essex (under the Essex Act 1987);
  • Birmingham (under the Birmingham City Council Act 1990);
  • London (under the London Local Authorities Act 1991).

Some local authorities are also using a range of other legislation to regulate elements of businesses providing these treatments, including the Health and Safety at Work etc Act 1974 and Health Protection Regulations 2010.

In addition, in 2021, the Botulinum Toxin and Cosmetic Fillers (Children) Act was introduced. The act made it a criminal offence to administer injectable toxins or a filler by way of injection for a cosmetic purpose to a person under the age of 18 in England, even if they have the permission of someone over 18. The act also made it an offence for anyone to arrange or carry out these procedures on anyone under the age of 18.

The September 2020 report The ugly side of beauty: improving the safety of cosmetic treatments in England, published by the Chartered Institute of Environmental Health (CIEH), found 90% of respondents to its consultation on the regulation of cosmetic interventions supported the introduction of a specialised national licensing scheme to improve the safety of cosmetic procedures.

The licensing scheme will ensure that those who offer specified procedures:

• are suitably knowledgeable, trained and qualified;
• hold appropriate indemnity cover;
• operate from premises which meet the necessary standards of hygiene, infection control and cleanliness.

Under the proposed scheme, which will be operated by local authorities in England, practitioners will need to be licensed to perform specific non-surgical cosmetic procedures and the premises from which they operate will also need to be licensed.

The consultation also seeks views on whether the government should restrict the treatments to be captured through the licensing scheme to persons over the age of 18. This will be in line with existing age restrictions on botulinum toxin injections, cosmetic fillers, tattoos, teeth whitening and sunbed use.

In essence, the government is seeking views on:

• the procedures in scope;
• restrictions on which practitioners should be permitted to perform procedures;
• age restrictions for those undergoing such procedures.

The proposed scheme will:

• identify the procedures that present a risk to the public;
• consist of two interlinked components: a practitioner licence and a premises licence;
• be administered and enforced by local authorities, who will work with a range of partners such as environmental health officers, trading standards officers and the Health and Safety Executive;
• make it an offence for an individual to carry out non-surgical cosmetic procedures without a licence;
• require those people who offer procedures to:
  • be suitably trained and qualified;
  • hold appropriate indemnity cover;
  • operate from premises which meet the scheme’s standards of hygiene, infection control and cleanliness;
• introduce a minimum age of 18 for those people seeking to receive the procedures licensed under the scheme.

In addition, the government considers that there are certain non-surgical cosmetic procedures that are of sufficient complexity and invasiveness that they should only be performed by suitably qualified and regulated healthcare professionals and that the lack of current restrictions to determine who is entitled to legally perform the more invasive procedures creates a significant risk to members of the public.

Examples of the types of treatment that it is considering restricting are:

• procedures aimed at augmenting the genitals, typically using autologous fat or dermal fillers;
• any injectable procedures – such as dermal fillers – undertaken to intimate areas of the body, such as the rectum, genitalia or breasts;
• the combination of ultrasound and large bore cannula for the purposes of liposuction.

Such procedures would not be included within the local authority licensing scheme, but would be restricted via a two stage process:

• the government would set out in regulations that specified high-risk procedures should be restricted to qualified and regulated healthcare professionals only. This would mean non-healthcare professionals would not be able to carry out these procedures; and,
• they would amend CQC regulations so that restricted high-risk procedures are classed as regulated activities by CQC.

The government invites responses to the consultation through the online survey until 11:59pm on 28^th October 2023, after which there will follow a period of analysis and consideration of the information provided to it.

Comment

Anyone working in this field must surely welcome the proposal that this part of the cosmetic surgery industry should be regulated more consistently and transparently. But could the government have gone further? After all, the Package Travel and Linked Travel Arrangement Regulations 2018 provide protection based on the sale or offering for sale of holidays within this jurisdiction, not merely holidays taking place here; could the licensing scheme work in a similar way? Or, as with the consumer contract jurisdictional provisions set out in the Civil Jurisdiction and Judgments Act 1982, could practitioners be required to have a licence when directing their business operations to this jurisdiction? If domestic practitioners are required to train, licence and insure, will this process render their prices less competitive, making foreign providers still more attractive to consumers? And if so, might the licensing system proposed actually do more harm than good?

In the view of the author the proposals are to be welcomed, albeit perhaps with some concern that they might, and perhaps should, have gone further to encompass practitioners based outside the jurisdiction, or at least to strengthen consumers’ protection in respect of such practitioners in the event of a problem with treatment.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.