Derek Couper

Given that many cosmetic treatments are either unavailable on the NHS, or only available in very specific cases, those determined to go under the knife will most often find themselves working with private treatment centres, independent salons or individual therapists. While in most cases, cosmetic treatments are carried out without issue and to the satisfaction of patients, there are cases in which issues arise as a result of the procedure including the potential for a patient to sustain serious and often lifelong injuries. It may be possible to seek compensation for those injuries if a mistake was made because of professional negligence, which has caused further suffering.

Legislation and enforcement of rules in this emerging area of medical practice have been the subject of much criticism, with many arguing there is merely an incomplete patchwork of regulation in place applicable to private therapists, with significant burdens to enforcement of relevant provisions in circumstances where certain practitioners are not regulated by any professional body. The Scottish government has recently confirmed that it will set out proposals to law and regulations which will apply to individual practitioners carrying out cosmetic treatments “in the near future”. However, many are concerned this is too little too late including Edinburgh-based Dr Demosthenous, who specialises in the field of cosmetic medicine at his own regulated practice  Last month he stated: “The regulations in Scotland started off with good intent however have become the joke of aesthetic medicine globally.”

Like Dr Demosthenous, many others are concerned that the proposed legislation from Scottish government is likely to focus on healthcare professionals who are already tightly governed and held accountable by their own regulatory bodies including the General Medical Council, the General Dental Council and the Nursing and Midwifery Council. Of greatest concern is perhaps the individual, unlicensed practitioners who advertise openly and most often on social media, and who carry out treatments either at home or in other informal settings. The concern is that the continued lack of regulation of these individuals, who are most likely to cause harm to the patients who attend with them for treatment, will continue unregulated and without sufficient safeguards in place. 

Practitioners who carry out procedures such as Botox filler, thread lifts, teeth whitening and skin peels or other treatments are not currently required to register with Health Improvement Scotland. Conversely, doctors, nurses, dentists, dental assistants and other healthcare practitioners are required to register with the relevant body which has responsibility for oversight of the quality and delivery of their care including any cosmetic treatments they carry out. Nail technicians, salon owners and others are not required to register with HIS and so are not bound by the same regulations and safeguards as apply to other medical professions. It is for this reason that many consider the regulations are necessary, notwithstanding the concern many have that they are unlikely to go far enough. There will be a great deal of focus on the scope of the new provisions, how they can be applied to those who offer treatment to the public including those not registered with a professional body, and how enforcement would work in that latter scenario. 

There will be much further comment on patient safety as it relates to cosmetic procedures once the draft regulations have been published by the Scottish government. Until then, many are concerned that we remain in a situation whereby individuals are risking adverse consequences by agreeing to procedures undertaken in unregulated premises and by unregulated practitioners. Should those procedures be carried out negligently, and harm to the patient arises from that, there is presently a real risk that the patient would be unable to pursue a claim for negligence against that individual if they are unregulated and without sufficient indemnity insurance. Legal professionals, medical practitioners and patients alike will be eager to understand the intent of the regulations once published and how this may impact the availability, affordability and expected standards of cosmetic procedures in Scotland going forward.

Derek Couper is an associate at Morton Fraser LLP