‘De-risking’ and financial exclusion
There have long been calls for better oversight and regulation of the beauty industry. As an example, ahead of the General Dental Council (‘GDC’) taking appropriate action leading to the Court confirming that teeth whitening amounts to the ‘practice of dentistry’ under section 37 of the Dentists Act 1984, these services were regularly being provided by untrained practitioners on the high street, often leading to injury to the public.
In May 2019, the All-Party Parliamentary Group on Beauty, Aesthetics and Wellbeing was established and began work on a year-long inquiry into aesthetic non-surgical cosmetic treatments. Its aim was to “investigate how standards for undertaking and advertising treatments such as botulinum toxins or similar anti-wrinkle injectables, dermal fillers, polydioxanone (PDO) threads and cogs, should be improved to support the beauty and aesthetics industry and protect public safety.” Last week, the APPG issued its final report (the ‘APPG report’) containing a list of recommendations and calling for the Government to set minimum standards and qualifications, and implement a new regulatory framework to govern oversight and enforcement in the sector.
Over recent years, there has been an increase in the popularity of aesthetic non-surgical cosmetic treatments, with many more new products becoming available to consumers. This rapid growth in the market has led to some cases of poor service being noted.
“The UK’s licensing and regulatory landscape has not kept pace with these changes. The lack of a consistent legal framework of standards has left consumers at risk and undermined the industry’s ability to develop, with negative connotations for the beauty sector as a whole.”
In 2013, Sir Bruce Keogh led a Review of the Regulation of Cosmetic Intervention (‘the Keogh review’), acknowledging the growing regulatory gap in this area. Following this review, Health Education England (‘HEE’) started work to develop educational standards and frameworks and published recommendations to the Government in 2015. However, the regulatory landscape has changed very little since then, and the industry is currently self-regulated with no mandatory national standards in place.
Against this backdrop, the APPG report is now calling on the Department for Health and Social Care to resume its consideration of the issues related to the growing aesthetics industry, and review the legislative and regulatory landscape based on the recommendations laid out in the report.
The APPG report sets out several issues including a lack of minimum standards for training and qualification to administer aesthetic non-surgical cosmetic treatments, and little recourse to consumers when things go wrong, owing to many practitioners being unregulated, meaning little can be done to ensure appropriate enforcement action is taken.
As regulatory lawyers, we focus on the recommendations made to the Government and the implications this might have for those working in the sector.
Introducing nationally regulated training and qualifications
“The current regulatory framework in the UK places no restrictions on who may perform aesthetic non-surgical cosmetic treatments in the private sector. There is a complete lack of national statutory requirements or standards covering consumer safety, education, training or qualifications required for the administration of these treatments. There exists huge discrepancies in the standard and quality of training available, to the detriment of practitioners and consumers, and limited accountability should something go wrong.”
The National Occupational Standards (‘the Standards’) established in 2012 are the closest thing the industry has to a competency framework. However, the Standards do not amount to qualifications, nor do they represent minimum standards for training; rather they are used as a benchmark on which training programmes and qualifications are developed.
As a comparison, registered healthcare professionals are required to meet the competency standards set by regulatory bodies such as the General Medical Council (‘the GMC’). While they may also choose to additionally register with the Joint Council for Cosmetic Practitioners (‘the JCCP’), only their registration with their regulatory body will demand they comply with the set minimum standards required of them. By contrast, there are no mandatory training qualifications or competency standards which non-medical practitioners must comply with.
Non-medical practitioners carrying out aesthetic non-surgical cosmetic treatments may also voluntarily register with the JCCP, if they meet the competency framework for practitioners, which it sets for new entrants to its register. Two points are important to note:
The JCCP’s competency framework incorporates the layered model of qualification recommended by HEE in 2015 (following the Keogh review). The model ranges from Level 4 (foundation degree) to Level 7 (postgraduate level) with the idea that practitioners can up- skill and progress through the levels. However, JCCP registration of non-medical practitioners who are not registered with a Professional Statutory and Regulatory Body (PSRB) – i.e. the GMC, NMC or equivalent – has been suspended at the Level 7 stage for administering injectable treatments and fillers.
The consequence of this is two-fold. Restricting the Level 7 JCCP accreditation to medical professionals only means that non-medics are disadvantaged in not being able to up-skill and progress their careers into advanced aesthetics. More concerning, however, is the fact that this lack of standards for training and qualification for these individuals has created a growing prevalence of ‘self-accredited’ short courses in the market. Not only does this raise the risk of harm to consumers, it places many practitioners in a position where they might believe they are receiving ‘accredited’ training qualifying them to perform advanced aesthetic treatments, when in reality this is not the case. While short courses play an important role for continued professional development (‘CPD’), there is danger in them being considered as stand-alone qualifications in advanced aesthetics, which they are not.
The APPG report thus recommends that nationally regulated training and qualifications (based on the HEE framework and the Standards) should be mandatory for all practitioners providing aesthetic non-surgical cosmetic treatments, and that annual CPD for these practitioners, medic and non-medic, should also be required to prove fitness to practice. This will require the Government empowering Ofqual to require regulated Awarding Organisations to evidence that their qualification curriculum complies with nationally set minimum standards and requiring all aesthetic practitioners to hold a regulated professional qualification. In addition, the report calls for on-site medical oversight for treatments which use Prescription Only Medicines (‘POMs’), with an initial face to face consultation with the person providing the medical oversight being required before any treatment commences. Alongside this, the APPG report recommends classifying dermal fillers as a POM, thereby requiring their use to be performed by on-site medical prescribers only.
Establishing a new national licensing framework
In addition to setting training and qualification mandatory, enforceable, and regulated by Ofqual, the APPG canvassed views from the industry regarding whether a mandatory register of aesthetic practitioners should also be established. Views were varied on this, with some seeing mandatory registration as ensuring higher and consistent standards and others suggesting the cost of implementing, administering and maintaining a mandatory register would outweigh any additional benefit in raising standards which would already be achieved from mandatory training and qualification.
Rather than creating a mandatory and regulated register of practitioners, the APPG report therefore recommends, in addition to the proposed nationally regulated training and qualifications framework, that a new licensing system governed by local authorities is established to drive up industry standards.
One of the concerns raised in the report centres around peripatetic practice, in other words, the undertaking of aesthetic non-surgical cosmetic treatments at practitioners’ or consumers’ homes. The Keogh review reported that 36% of nurses performed such treatments. The current regime governed by the Local Government (Miscellaneous Provisions) Act 1982, the London Local Authorities Act 1991, and the Health and Safety at Work Act etc. 1974, does not give regulatory powers to local authorities to enforce against peripatetic practices.
“… a premises licensing scheme for aesthetic non-surgical cosmetic treatments (special procedures) would ensure that minimum standards of public safety are met and would be a step towards ensuring comprehensive and clear reporting and enforcement paths are in place.”
As such, the APPG recommends that the Government introduces a national licensing scheme, by way of either amending the Local Government (Miscellaneous Provisions) Act 1982 or by way of new primary legislation, to govern the oversight of advanced aesthetic non-surgical cosmetic treatments. This scheme is envisaged to be supported by the new mandatory national minimum standards for training and qualification framework.
After a year-long enquiry into aesthetic non-surgical cosmetic treatments, the report by the APPG on Beauty, Aesthetics, and Wellbeing highlights the lack of an adequate regulatory framework of standards around these treatments and makes a strong case for change in order to improve public safety. The number of advanced cosmetic treatments such as Botox and dermal fillers continues to grow, and coupled with the increased promotion of these treatments to the young and vulnerable through advertising and social media, the report places pressure on the Government to resolve the current fragmentation of regulation in this sector, for the benefit of the industry and the growing number of consumers it serves.
Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising regulated individuals, businesses such as clinics and care homes and students in respect of disciplinary investigations. She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.
Lucinda Soon is a professional support lawyer in the Regulatory team, and is responsible for knowledge management and practice development. Her work focuses on leveraging the team’s collective knowledge and expertise, ensuring that know-how and current and emerging regulatory developments are identified, evaluated, synthesised, and shared. She is particularly experienced in the adoption of technology to aid the delivery of these outcomes.
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