09 November 2023

There has been a growing prevalence and normalisation of non-surgical cosmetic procedures associated with the rise of social media, the increasing accessibility and affordability of high street providers and the advancement of technologies and products in this field. Procedures such as botulinum toxin (“Botox”), anti-wrinkle injections, cosmetic fillers (“dermal fillers”), chemical peels and energy-based treatments, are growing in popularity, with new procedures rapidly emerging onto the market. Evidence suggests that most non-surgical cosmetic procedures are carried out by private providers.

The Health and Care Act 2022 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 consultation ended on 28 October 2023 and it is hoped that this will prompt progress in Scotland on this topic.

The current regulatory framework places few restrictions on who can perform non-surgical cosmetic procedures. This raises concerns about public safety given these procedures have the potential to cause serious injury or harm.

At present, competent practitioners who operate to high standards of best practice in training, health and hygiene often find themselves in competition with practitioners who lack appropriate training in the procedures they offer.

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, to be operated by local authorities in England, practitioners will need to be licensed to perform specific non-surgical cosmetic procedures from licensed premises.

This is only the first consultation on the licensing scheme. Further work will involve stakeholder engagement and public consultation to determine the principles that will underpin the scheme including education and training standards, infection control and cleanliness, indemnity requirements and licensing fees.

The consultation sought views from current providers, insurers, healthcare professionals, consumers and regulators on:

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

Any procedure under the scheme will be prohibited for under 18s. At present, the Botulinum Toxin and Cosmetic Fillers (Children) Act 2021 makes it a criminal offence to administer toxins or filler by way of injection to a person under the age of 18 in England – this is not the case in Scotland and Wales, leading to calls for uniformity to prevent people travelling to sidestep the law.

Currently, Health Improvement Scotland (HIS) regulates independent clinics provided by medical practitioners, registered nurses, midwives and dental care professionals, making it an offence for them to operate an unregistered independent clinic.

Notably, clinics operated by beauticians and beauty therapists do not require to be registered with HIS. Non-surgical cosmetic procedures that pierce or penetrate the skin, such as dermal fillers, remain unregulated, so anyone can carry out these procedures. Pharmacists have started carrying out injectable procedures from establishments that are not regulated by, nor registered, with HIS. Concerns centre around the serious complications/injuries connected to these procedures and the requirement for corrective work.

The Scottish Cosmetic Interventions Expert Group recommended bringing aesthetic treatments provided by non-regulated professionals into an appropriate regulatory framework. It appears this is currently a long way off and further intervention is awaited from the Scottish Government.

Presently, there is no equivalent of the Health and Care Act in Scotland, although the Scottish Government carried out a consultation in 2020 into the regulation of non-surgical cosmetic procedures and proposals to introduce a licensing scheme. The outcome was published in July 2022. The proposals included:

• scoping out other procedures which could benefit from further regulation.
• consideration of secondary legislation to bring pharmacists providing services outside NHS contracts under the regulation of HIS by adding them to the list of those included in the definition of an independent clinic.
• consideration of existing legislation to extend it to license businesses providing a wider range of currently unregulated non-surgical cosmetic procedures or body modifications. This will relate to procedures carrying a risk of potential infection or tissue damage which require medical intervention, but do not require an immediate or urgent prescription-only medicine to reverse dangerous side-effects.

There was strong public support for further regulation of non-surgical cosmetic procedures that pierce or penetrate the skin. The responses also showed support for the regulation of pharmacists providing independent services in the same way as other health professionals.

The Scottish Government makes clear in its response that it will not be focusing on all non-surgical cosmetic procedures. From a clinical safety perspective, the priority is to consider regulation of the administration of dermal fillers due to the potential complications, causing long term damage, that are reversed or limited only by the urgent administration of specific prescription-only medication, which is not the case with other non-surgical cosmetic procedures. 

Whilst the Scottish Government recognises the concerns around Botox, it points out that Botox is already regulated under UK legislation as a prescription-only medicine. There are regulatory requirements governing the manufacture, distribution, sale/supply and advertisement of medicinal products like Botox, meaning only doctors, dentists, nurse prescribers and prescribing pharmacists trained in administering Botox can prescribe it. Non-prescribing practitioners need to ‘buddy up’ with a prescriber or prescribing service.

Currently, there is no timeline as to when regulation will be introduced in Scotland, however, it is hoped the movement south of the border will encourage change.

Natalie McCartney, Senior Associate and Solicitor Advocate: nem@bto.co.uk / 0131 222 2939