01 October 2021

Recent years have seen a rapid increase in non-surgical cosmetic treatments administered throughout the UK. Surprisingly, unlike cosmetic surgery, aesthetic treatments such as Botox or Dermal Fillers have been largely left for the industry to self-regulate. Non-surgical cosmetic treatments require penetration of the skin and alter the appearance of the person injected; yet there is currently no UK regulatory framework or restrictions on who can administer the injections and no requirement for the cosmetic practitioner to be covered by the appropriate level of insurance, or any at all.

Injecting change…

As of today, (1 October 2021), the Botulinum Toxin and Cosmetic Fillers (Children) Act 2021 comes into force in England. The Act criminalises the administration of Botox or Fillers for a cosmetic purpose where the person is under the age of 18. Cosmetic purpose is defined under section 3 (a) and (b) of the Act. It is to be interpreted as a cosmetic purpose where it is “generally used for such a purpose”, or “the likely effect of the injection is to alter the appearance of the person injected”. 

Section 4 of the Act does provide an exception, if the injecting person was a registered medical practitioner or if the person was a regulated health professional (nurse, dentist, pharmacist), and was acting under the directions of a registered medical practitioner for a clinical purpose. It is also a defence if the defendant had taken reasonable steps to ascertain the age of the child and believed the child was over the age of 18. 

The Act has wide ranging effect and Government guidance cautions that all providers of clinical healthcare services, their regulated providers and all commercial providers of cosmetic procedures should ensure they abide by the new provisions. Breach of the Act could result in criminal prosecution and an unlimited fine. 

All non-surgical cosmetic practitioners in England must ensure that they verify the age of customers or patients before booking or providing treatment. Regulated professionals must only carry out treatment on under 18-year-olds under the directions of a registered doctor, where there is a recognised medical purpose. 

Inquiry into Injectables 

The implementation of the 2021 Act is a drop in the ocean in comparison to the regulatory overhaul the All-Party Parliamentary Group on Beauty, Aesthetics and Wellbeing recommend. The APPG concluded its Inquiry Session on 9 June 2021. They highlighted the vulnerability of patients suffering from botched procedures where practitioners had no training or insurance and were concerned that medical practitioners who practise to a good medical standard will be unfairly tarnished by those who do not. The APPG calls for the Government to impose mandatory registration for all practitioners and a licensing scheme to be implemented. The national licensing scheme would be supported by a framework which mandates minimum standards of public safety and training. Robust insurance would be required which would be held at an industry standard for the level of proven competence. 

What’s the position in Scotland?

Scottish non-surgical aesthetic practitioners will not be affected by the 2021 Act due to Scotland’s devolved administration. Scotland has implemented a quasi-system of licensing which applies to private or voluntary clinics providing healthcare services outside the framework of the NHS. The Healthcare Improvement Service (HIS) is implemented through the National Health Service (Scotland) Act 1978. If you are classified as a regulated practitioner, you must register with HIS to be able to carry out non-surgical aesthetic procedures. However, non-surgical beauticians or beauty therapists who do not work in a clinic with regulated professionals do not need to register with HIS and are unregulated. 

The Scottish Government held a Consultation in January 2020 to combat concerns that non-qualified individuals were carrying out unregulated invasive procedures. It proposed a system of regulation under Part 1 Section 44 of the Civic Government (Scotland) Act 1983 which would require beauticians and beauty therapists to hold a licence to perform treatments which penetrate the skin. 

At this stage, the Consultation recommendations have not been implemented. 

Take away points 

1. As of today, England has seen change to prevent the administration of Botox or Fillers in under 18-year-olds. England should expect further regulation following the recent conclusion of the APPG Inquiry.
2. In Scotland, there is no such equivalent law, but it is an indication that cosmetic medicine is becoming more regulated. 
3. In both England and Scotland, implementation of the licensing recommendations is likely to influence change amongst insurers and brokers and it will be important that they keep up to date with the changes. 

If you have any queries relating to greater regulation of the non-surgical cosmetic industry and what this could mean for your practice or business, please do not hesitate to contact a member of BTO’s Professional Discipline and Clinical Defence Team. 

Cara Docherty, Associate: cdo@bto.co.uk / 0141 221 8012

Phoebe Crane, Trainee Solicitor: pcr@bto.co.uk / 0131 222 2939