To botox or not to botox?

You look at yourself in the mirror one morning and see a prune staring back at you. Time for botox, you think.

But what if something goes wrong and you discover that the person who administered the botox injections was not the highly experienced practitioner she claimed to be, but a dangerous chancer?

Do you run off to the local police station and report her?

In May 2019, the government launched a new awareness campaign to improve the public’s understanding of the potential risks associated with botched cosmetic surgery.

The campaign was introduced in response to the growing number of people receiving cosmetic procedures from unqualified staff.

Such procedures raise several legal issues, not least whether those members of staff have any criminal liability.

R v Melin (Ozan)

This was the question considered by the Court of Appeal in the recent case of R v Melin (Ozan) [2019] EWCA 557.

The appellant administered Botox injections to two women – the complainants in the case.

Before the injections were given, the appellant told one of the women that he was a cosmetic surgeon trained in America.

The other woman was told he had trained to be a doctor in the Turkish army and had specialised in facial surgery.

In fact, these statements were untrue. The women subsequently suffered serious harm as a result of the treatment.

Both complainants gave evidence that had they known the true position, they would not have consented to the procedure.

The appellant was convicted on two counts of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 and sentenced to four years’ imprisonment.

On appeal, it was argued on his behalf that the convictions should be quashed as the complainants consented to the treatment. Reliance was placed on R v Richardson (Diane) 1999 QB 444.

R v Richardson

In this case, Miss Richardson was a registered dental practitioner who had been suspended from practice.

She carried out dentistry on patients who said they would not have consented had they known that she was suspended.

The practitioner was convicted of assault occasioning actual bodily harm contrary to section 47 of the 1861 Act.

The Court of Appeal allowed her appeal and quashed her conviction. Otton LJ, handing down the judgment of the court, approved Professor J C Smith’s view in Smith & Hogan's Criminal Law (8th edition) (1996) at page 420:

"Fraud does not necessarily negative consent. It does so only if it deceives [the victim] as to the identity of the person or the nature of the act."

The Crown submitted that Miss Richardson, having given the impression that she was not suspended, had deceived the complainants as to her identity.

Otton L J unambiguously rejected that submission: “In essence the Crown contended that the concept of the ‘identity of the person’ should be extended to cover the qualifications or attributes of the dentist on the basis that the patients consented to treatment by a qualified dentist and not a suspended one.

“We must reject that submission. In all the charges brought against the defendant the complainants were fully aware of the identity of the defendant.

"To accede to the submission would be to strain or distort the everyday meaning of the word identity, the dictionary definition of which is ‘the condition of being the same’”.

Let us return to Melin in which, it will be recalled, counsel for the appellant submitted that Richardson was indistinguishable from the present case; and that the ‘identity’ of a person could not be extended to that person’s ‘qualifications or attributes’.

Simler J, handing down the judgment of the Court of Appeal, rejected that submission: “The word ‘identity’ is an ordinary English word, defined as ‘the fact of being who or what a person is’.

Depending on the facts, it seems to us that deception as to a person's identity as a doctor where that is integral to his or her identity [author’s italics], can as a matter of law vitiate consent.

That is different to what happened in R v Richardson (Diane) and does not amount to including qualifications within this definition in the sense referred to in R v Richardson (Diane) "...If as a matter of fact, administration of the injection by a medically qualified practitioner was for each complainant a condition of giving her consent...it seems to us that this would go to the question of the appellant’s identity and the legal validity of their consent.”

The appeal was accordingly dismissed and the convictions upheld, though the sentence was reduced to two years’ imprisonment.

WAKE-UP CALL

Melin should act as a wake-up call for unqualified staff operating in the cosmetic treatment field.

They run the serious risk, not only of being sued – but also of being convicted of serious criminal offences likely to result in a loss of liberty.

Laurence Toczek is a solicitor and a tutor at BPP University Law School in Leeds bpp.com