Since the Department of Health carried out a review into the regulation of cosmetic interventions in 2013, practitioners providing cosmetic treatments, and their med-mal Insurers, have faced greater scrutiny amid calls for a more robust framework, to provide greater protection against the potential risks from cosmetic procedures. 

Published today, two sets of guidance have been presented, to which all those offering cosmetic treatments (and surgery) should be aware:-

  • GMC Guidance for Doctors Who Offer Cosmetic Interventions (applying to all cosmetic treatments) and
  • Professional Standards for Cosmetic Surgery, issued by the Royal College of Surgeons (which supplements the GMC Guidance and applies to all invasive cosmetic surgery).

A 'cosmetic intervention' is defined by the GMC as "any intervention, procedure or treatment carried out with the primary objective of changing an aspect of a patient's physical appearance.  This includes surgical and non-surgical procedures, both invasive and non-invasive."

The GMC Guidance comes into effect on 1 June 2016.

Key principles

The key elements of the new guidance are:-·

  • The patient must be given time and information to reach a voluntary and informed decision about whether to go ahead with a procedure
  • For surgeons performing cosmetic surgery, they must ensure that consent is obtained in a two-stage process with a cooling-off period of at least two weeks between stages
  • The responsibility for discussing the intervention and seeking the patient's consent is the responsibility of the doctor who will be carrying out the procedure this responsibility must not be delegated
  • In discussing the treatment and options, the patient's vulnerabilities and psychological needs must be considered the doctor must be satisfied that the patient's request for treatment is voluntary
  • Patients must be told if alternative interventions are available that could meet their needs with less risk, including from other practitioners
  • Marketing must be responsible – it must not claim that interventions are "risk-free".  The patient must not be misled about the results likely to be achieved
  • Promotional tactics, and offering services as a prize should not be undertaken
  • Patients should be given written information that explains the treatment they have received in enough detail to enable another doctor to take over the patient's care.  This should include relevant information about the medicines or devices used.  This information, with the patient's consent, should be sent to the patient's GP and any other doctors treating the patient if likely to affect their future healthcare.

Implications

For many practitioners offering cosmetic treatments and surgery, the guidance is unlikely to radically alter their existing good practice, in complying with their duties to ensure that a patient is made aware of the material risks of a treatment, and the alternatives, when obtaining a patient's informed consent (in accordance with the Supreme Court decision of Montgomery).

However, the Guidance should be essential reading for med-mal Insurers and risk-management officers, who should review their existing practices and procedures to ensure that their practices reflect the principles of the new Guidance.  Insurers may, if they consider appropriate, wish to update their policies to ensure that compliance with the Guidance is a condition for their Insureds to comply with.

Of particular importance in the Guidance will be the requirement to ensure that the treating clinician discusses and obtains the patient's consent – and does not delegate this responsibility.  Clinicians should also take note of the requirement to tell the patient if alternative treatments are available that could meet the patient's need – including from other practitioners. 

As those who defend medical malpractice claims, we expect the Guidance to be used as an additional layer of reference by Claimants and their solicitors if claims resulting from cosmetic treatment are brought.  Breaches of the new Guidance may be difficult to defend.  Practitioners and their Insurers should therefore consider the Guidance and their existing procedures with care.