Non-surgical cosmetic procedures: the necessity for regulation of non-professionals in the medical aesthetics industry in Scotland - An article by Alanis Hunt

In an age where almost everything we do can be shared online; the prominence of social media, ‘selfies’, and the content creators behind it all have undoubtedly created a new Internet Age. At the turn of the last decade, a new type of celebrity was emerging: the ‘Influencer’. Average men and women were taking to YouTube, Instagram, and other platforms to share reviews and tutorials of beauty related products. This quickly flourished into a billion-dollar industry, with social media propelling normal people into stardom and notoriety. The appeal of these figures appeared to stem from their relatability, compared to traditional celebrities like actors or musicians. Nonetheless, the influence these online figures have had on society at a cultural level is undeniable. With the evolution of this type of media, the expected beauty standards have also changed.

The impact of the ‘Influencer’

So, how has this affected the average consumer of the beauty industry? Most notably is through the increase in popularity of non-surgical cosmetic procedures. Beauty products are no longer limited to makeup or skincare products, and it is now very common to hear popular figures discuss injectable, cosmetic treatments. Such treatments primarily consist of dermal fillers and anti-wrinkle treatments. Dermal fillers can be directly injected into the lips or face to create the appearance of fuller lips or cheeks. Similarly, anti-wrinkle treatments, or ‘Botox’, have a dramatic effect in reducing wrinkles by relaxing the muscles responsible for them. These treatments are considered temporary, as the effects can wear off anywhere between six months to two years. The recovery times of such procedures are a massive advantage for those wishing to avoid traditional and invasive surgery methods. It is understandable to see the appeal of these treatments, and when they are openly discussed, and oftentimes promoted by online figures, we can also understand why many choose to experiment and regard this as a casual treatment as opposed to an actual medical procedure.

Why should we regulate non-professionals?

Despite the increased popularity of these procedures across the UK, there is still no law that governs the use and possession of these injectable products. Currently, anyone can purchase dermal fillers without the need for a prescription, and worryingly, anyone can administer fillers without having any knowledge or training in medical procedures. This has led to a boom in the medical aesthetics industry; with no control over individual qualifications and training, and as filler products can be so easily acquired, anyone can legally work in this field. The possession of prescription-only, injectable products by unauthorised persons has some consequences under UK statute, but the act of administering any of these products does not. Herein lies the main issue: any person administering injectable treatments faces no ramifications where they are unqualified, or if they cause harm to a patient because of their inexperience and lack of medical knowledge. This has left many practitioners, professionals and many others within the healthcare field extremely concerned about the future of the profession without regulation.

Although there is little regulation, there are many risks associated with filler procedures. The fundamental danger is the increased risk of serious harm and disfigurement to patients. When injecting fillers into the face, the risk of vascular occlusion is highly likely when performed by an under-qualified individual. This is because their awareness of facial anatomy is limited compared to most medical professionals. Vascular occlusion occurs when filler is injected into a blood vessel and creates a blockage that can lead to necrosis of the tissue, resulting in permanent facial disfigurement. When performed by a professional, the risk of serious complications is greatly reduced as their understanding of facial anatomy will be far greater. Furthermore, should complications arise, a medical professional has access to use the prescription-only agent that dissolves filler products (known as Hyaluronidase) when most non-professionals may not. Nevertheless, complications in medical procedures can never be entirely ruled out but having sufficient training and understanding of these specific procedures hugely minimises the possibility of harm to patients.

Accordingly, to legislate within this realm should now be considered obligatory. This industry has become oversaturated with under-qualified individuals due to the clear gaps in the law that enable them to practice. Ultimately, many are at high risk of suffering serious, yet avoidable, harm because of this. We must consider appropriate measures to account for our complete lack of regulation to manage non-professionals in the medical aesthetics industry. This will keep prospective patients and the entire industry safe.

How can non-professionals be regulated?

In Scotland, medical professionals are held accountable to Healthcare Improvement Scotland (“HIS”). HIS is regulated by the Healthcare Improvement Scotland (Delegation of Functions) Order 2016. Being registered with HIS is only available to doctors, nurses, and dentists, whilst the industry for non-professionals remains unregulated. With practitioners being inundated with demand for treatments, it would be extremely difficult, if not impossible, to entirely ban non-professionals from practice in Scotland. Instead, statutory regulations should be introduced to ensure non-professionals can be held legally accountable if they wish to operate in this field. As the Scottish Government has the power to legislate over its own healthcare, demonstrated by the introduction and regulation of HIS, they could take a similar approach here.

In January 2020, a consultation paper from the Scottish Government was published seeking public opinion on whether non-medical professionals should be allowed to carry out procedures that penetrate the skin. Their proposal to change the law would be to introduce an amendment to section 44 of the Civil Government (Scotland) Act 1982 to allow non-professionals to perform non-surgical cosmetic treatments under licence. These non-professionals would be regulated by a local authority Environmental Health Officer – similar to what currently exists for tattoo studios and skin piercing businesses. The local authority would have discretion to decide if an individual is a “fit and proper person” to hold a licence. The creation of this type of subordinate legislation could begin to govern non-professionals in the industry by holding them accountable to a public body.

The Scottish Government’s proposal is not infallible, but still provides us with a solid foundation to build upon. For example, in establishing who is “fit and proper,” it must be ensured that a licensed injector is held to a higher standard than a tattooist or body piercer. The work involved for tattoos or piercings requires less medical knowledge, and any medical issues that arise with customers can, in general, be addressed quickly. Whereas if a filler procedure goes awry, unqualified practitioners do not have legal access to the prescription-only medication required to reverse the effects of the filler. This could then lead to more grievous harm by comparison. Thus, the standards expected must be higher as the risks of complications are greater with injectable treatments.

In terms of how to improve upon the Scottish Government’s proposal, the first recommendation would be to introduce a statutory duty on injectors to obtain appropriate business insurance and to record and report incidents of serious harm within the subordinate legislation. Record-keeping is considered good practice and current legal requirements ensure that professionals keep medical records for all patients. A similar obligation on non-professionals would be beneficial and encourage better documenting and reporting of incidents. Incident reports to the local authority are already a requirement for tattoo or piercing procedures; these are subject to scrutiny upon application for a licence, and for subsequent inspections. Arguably, similar mechanisms should be implemented within licences for injectable procedures.

Another recommendation is that individuals wishing to carry out non-surgical cosmetic procedures must enrol in professional, accredited courses as part of a condition to receive a licence. This means that non-medical professionals would have a similar level of knowledge and understanding as professionals within the industry. Importantly, this would mitigate the risks of harm arising from these procedures, as the administrator will be required to have specific understanding of facial anatomy. Failure to fulfil the course requirements could also mean failure to obtain a licence therefore meaning they would be unable to legally practice.

Local authorities should also be given the authority to strike off or formally caution non-professionals when serious harm occurs due to their negligence or inexperience. The local authority could also enforce the individual practitioner to undergo further training in order to retain their licence, with fines being administered if the individual fails to comply. The power to do this could also be given through eventual legislation.
Additionally, anyone found to be operating without a licence could face punishment through a fine or other non-custodial punishments - as appropriate. The implementation of fines may be advantageous as the threat of financial burdens, and probable negative perceptions of business practices, could deter individuals from practising.

Lastly, patients should be able to easily find out whether an individual administering injectable treatments is licensed. This could be achieved through the creation of an online register led by the Scottish Government, containing details of licensed injectors as well as fully qualified medical practitioners. In the register, this difference between the types of practitioners should be noted, along with the experience and skills of each individual. As this would be available to view online, it would allow potential patients to make an informed decision over which practitioner would be most suited to them. Injectors should also be legally required to declare to patients that they are not medical professionals. This should be done verbally and in written consent forms to ensure a sound understanding of the difference between an injector versus a practitioner and that patients can understand the risks associated with this. This would allow them to make informed decisions over these procedures which puts the patient at the forefront of the decision-making and follows the principles of informed consent.

The future of non-surgical cosmetic procedures

As with any proposed changes, there are naturally some limitations. Licensing provisions introduced by the Government can be either compulsory or discretionary, so local authorities may not fully implement the provisions despite the risks associated with leaving the industry unregulated. Also, there may be statutory limitations with the amount of money individuals could be fined if they are found to be in breach of regulations. This is due to restraints within devolved legislation and the powers of Scottish Government under the Scotland Act 1998. Thus, the Scottish Government must be careful when legislating in this area to ensure balance between overstepping into reserved matters and ensuring uniformity in application of the regulations.

Secondly, if such guidelines were to be implemented, continued auditing of licensees would be required to ensure the scheme was running as anticipated. A trial period in some local authorities may also be necessary prior to a national rollout, to ensure any discrepancies could be accounted for before a full enactment of the law. This may prove quite costly, and some local authorities may be reluctant to do this due to budgetary constraints. Any new financial obligations are always a concern at a local government level, and increased workloads in Environmental Health departments without adequate financial provisions could render this entire proposal futile. Although, if this proposal, or another akin, is successful, the fees obtained through new fine regulations may be directly channelled back into these departments to support increased costs.

Ultimately, it cannot be understated that non-surgical cosmetic procedures should only be reserved to those with the optimum level of training. Yet, the industry of unregulated practitioners in Scotland is far too substantial to simply try to eradicate them. It is suggested that the most effective way to handle the industry in its current state, is to introduce measures that allow non-medical practitioners to continue operation with the requirement of a licence and have appropriate health and safety measures in place as close to HIS regulations as possible.
As a final observation, it should be noted that most of these recommendations would probably not even be necessary if the Medicines and Healthcare products Regulatory Agency would change the classification of dermal fillers to prescription-only. If this were the case, unqualified individuals being able to retrieve these products would be restricted, and the wider likelihood of harm would be reduced. Regulation of the industry would still be necessary, but a change in classification would be a major step towards improving the profession and reducing the threat to public health in Scotland and the rest of the UK.



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