According to the Director of Public Prosecutions, the likelihood of the first prosecution in the UK for female genital mutilation is imminent. The general presumption is that the prosecution will relate to the cultural practice of female circumcision. What few plastic surgeons realise, however, is that even conducting female genital cosmetic surgery (FGCS) is, technically, unlawful.
FGCS is promoted as a way to enhance sexual gratification, appearance and self-esteem. All types of “vaginal rejuvenation” comprise surgical alteration, generally involving reduction of the labia, and, perhaps, some “tightening” of the upper vagina. The Female Genital Mutilation Act 2003 (the Act) was originally enacted in order to prevent female circumcision. It specifically outlaws a person who “excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris”. At the time the Act was passed, FGCS was relatively uncommon.
Thirteen years later we find ourselves in a climate of increased emphasis on aesthetics and a quest for bodily “perfection”, fuelled by the “pornification” and “celebritisation” of modern culture. This article looks briefly at how FGCS is potentially a “ticking bomb” and at what surgeons can do in order to minimise and mitigate the risk. Specifically we consider:
- The workings of the Act
- What constitutes “necessary” surgery
- Consequences of the Illegality
- How surgeons can minimise and mitigate the risks
Workings of the Act
When the Act refers to “…excises, infibulates or otherwise mutilates…” surgeons could be excused for assuming that the reference to “otherwise mutilates” means an excision is only unlawful if it has the effect of mutilating. Unfortunately for surgeons, this is unlikely as it would be at variance with the World Health Organisation definition, in which partial removal of external genital tissue amounts to mutilation (save for “medical reasons”). Therefore, whether or not the patient is consenting to surgery (note that without consent the surgical procedure itself would legally constitute criminal assault), the Act makes surgery unlawful. The exceptions to this are two fold:
- Where a procedure is necessary for the patient’s mental health: “…no offence is committed by an approved person who performs (a) a surgical operation on a girl which is necessary for her physical or mental health…” The explanatory note to the Act says: “Operations necessary for mental health could include, for example, cosmetic surgery resulting from the distress caused by a perception of abnormality or gender reassignment surgery.”
- A surgical operation on a female who is in any stage of labour, or has just given birth, for purposes connected with the labour or birth.
What constitutes necessary surgery?
This article is not concerned with the exception relating to childbirth. The problem surgeons face when they agree to undertake surgery is that they rarely consider whether that surgery is strictly “necessary” for the individual concerned. If a woman is distressed by, or simply unhappy with the appearance of her genitalia, it does not necessarily follow that an operation is “necessary”. The Act requires surgeons to demonstrate that psychological therapy or similar treatments are not appropriate and sufficient alternatives, and that unless a surgeon can demonstrate a very clear link to the psychological need for the surgery (rather than one on grounds of fashion and desirability), FGCS is unlawful. This is of particular concern when mere fashion (and the underlying influence of pornography) tends to be the driver for FGCS. It is particularly difficult for cosmetic surgeons to understand when, with most other common cosmetic surgery, a justification based on fashion would be entirely lawful.
It therefore appears that, in order to protect surgeons from falling foul of the law, far more needs to be done at the pre-operative assessment stage to determine the individual’s reasons for wishing to undergo surgery – for example, whether their concerns are deep seated, whether they have a history of psychological issues, whether they can be referred for Cognitive Behavioural Therapy or similar treatments in order to address their concerns – before proceeding with FGCS.
So, could surgeons be prosecuted for carrying out FGCS?
A patient who has undergone FGCS would theoretically be able to seek legal redress from the fact that the procedure is inherently illegal. It would then be irrelevant how carefully it was performed or that it was in accordance with her instructions. In practice, however, it would be surprising if a patient complained of the illegality of a procedure that has been routinely carried out by respectable surgeon and to which she expressly consented. As the law in this area is currently untested, we have no authority to rely upon. The question is likely to be, whether as a matter of public policy, the claimant who “chose” to participate in criminal conduct should be allowed to make a claim in tort at all.
This implies that a civil court would not be quick to declare unlawful that which is now a widespread practice and part of the livelihood of many professionals. However, though a prosecution is unlikely, it does not mean that surgeons should rest on their laurels. We have seen a rise in civil claims relating to FGCS. These claims, if successful, could be financially disastrous for a surgeon and their professional indemnity insurance premium. They tend to include claims for physical and psychological injury associated with, among other things: self-consciousness and altered body image; low mood and anxiety; and sexual dysfunction and inability to orgasm. These can easily be in the region of £100,000 before legal costs.
How surgeons can minimise and mitigate the risks
The Review of Cosmetic Interventions Final Report (the Review) published in April 2013 recommends routine psychological assessments ahead of general cosmetic procedures. Surgeons need to get into the habit of ensuring that their patients undergo such assessments prior to any potential treatment. The Review considers FGCS and advises that surgeons who practise it should:
- Manage patients’ expectations regarding the outcome of surgery
- Perform routine psychological assessments
- Ensure they have a clear understanding of the Act
We therefore advise the following interventions as best practice:
- Drafting detailed literature setting out the potential risks of the procedure and its limitations
- Checklist procedures integrating written consent confirming that the literature has been provided to and understood by the patient
- Eliciting the reasons for surgery in detail as part of the pre-operative assessment and referring the patient for a psychological assessment immediately
- Awaiting the results of that assessment before contemplating further action
- Liaising with the psychologist to establish whether therapy is a viable alternative to surgery, and where it is not, ensuring that the psychologist documents this, and that this in on file before taking further action
- Setting out the risks of surgery and limitations verbally to the patient and documenting this in detail, ensuring that the patient reads and signs the notes of the consultation
- Ensuring there is at least a 28 day “cooling off” period between the pre-operative consultation and the operation
- Fully discussing the procedure’s risks and limitations again with the patient on the day of surgery and keeping a detailed record of said discussion which the patient signs
Irrespective of the fact that a civil court is unlikely to wish to become embroiled in issues of policy in relation to female genital mutilation, particularly given that a prosecution relating to cosmetic surgery is also likely to open a can of worms, surgeons still need to take the existence of the Act seriously and heed its provisions.
They can avoid the potential for prosecution and a costly, time consuming civil claim by adopting the risk management strategies outlined, with a particular emphasis placed upon psychological assessments and a thorough consideration of whether alternative options for treatment can be offered to the individual.