Update | Consumer law: consumer protection and plastic surgery

Cosmetic surgery is increasingly accepted as part of modern consumer society. Those who follow celebrity stories in magazines and on reality TV shows are sucked in to a barrage of physical perfection through editorial and advertisements promising to provide it. Sales techniques which would bring a smile to the face of a second-hand car salesman are widely used to promote eye surgery, nose re-shaping, calf implants, dental work and breast enhancement on credit terms or at a discount. But as the PIP breast implant debacle last year shows, these procedures involve complex medical treatment which have serious physical and psychiatric consequences when things go wrong.

So where is the consumer protection? The PIP cases showed that not only were customers unaware of the risks of treatment, but that redress was far from a simple matter. Recent developments ?show changes are coming from several different directions.

The Cosmetic Surgery (Minimum Standards) Bill 2012-13 went through its second reading in the House of Commons on 1 March 2013. The bill seeks to protect consumers by creating a new, centralised regulatory framework at the heart of which is the Cosmetic Surgery Regulatory & Standards Authority (OffCos). All cosmetic surgery and cosmetic intervention practitioners must be registered with OffCos in order to legally offer their services to consumers. OffCos would have the power to grant and remove practising licences; share responsibility with the Care Quality Commission (CQC) for inspecting clinics; and require practitioners to contribute to a financial guarantee scheme (all under section 2).

Importantly, section 3 seeks to impose a complete ban on cosmetic surgery advertising as part of a business. This extends to devising and distributing the adverts. In contrast to this draconian measure, the maximum criminal penalty is a £5,000 fine in addition to a potential six months in prison. The fine is roughly equivalent to the cost of cosmetic surgery, but a jail term would most likely result in medical practitioners being struck off or severely restricted in their ability to practice in the future. Non-medical providers would seem to be less restricted on this basis.

Promises, promises

However, it remains to be seen whether such a blanket ban and centralised approach to advertising will make it onto the statute books as government support for this bill is presently uncertain. But it does reflect the wider concerns that have arisen over the advertising methods currently being used.

The Advertising Standards Authority (ASA) has seen a steady stream of referrals over the past year. Their decisions have been noticeably critical of the misleading and objectionable nature of these adverts. Of particular interest is the decision ?against the Transform Medical Group on ?19 September 2012, not least because it shows that the ASA will act supportively in light of only a few complaints from the public.

The clinic’s advert showed men and women claiming that their friends and family noticed their evident increased happiness following breast implants, liposuction and tummy tuck surgery. Three television viewers complained that it was shown at a time when schoolchildren would be watching TV and that it would undermine teenagers’ self-images. Body-dysmorphic disorder is a very real concern here. The panel agreed; the key piece of evidence was that the audience index figures for the TV program concerned at 4.30pm on a weekday showed that this target audience was the under-16s.

Basement surgery

The licensing of practitioners is currently the remit of the CQC. However, it is only responsible for cosmetic surgery and not non-surgical procedures.

So, unless the bill becomes law, the providers of potentially dangerous procedures such as chemical peels, dental whitening and Botox injections will all remain unregulated with no minimum treatment or qualification standards.

The High Court has had the opportunity to give its views on the need for vigilance in Waghorn v CQC [2012] EWHC 1816. Dr Waghorn appealed his conviction under section 11(1) of the Care Standards Act 2000 on the somewhat bold basis that he was not carrying on as an independent hospital nor did he own or manage the clinic and so did not need to be registered to perform cosmetic surgery.

Dr Waghorn ostensibly practiced at The Berkley Clinic with consulting rooms in Harley Street. He had seen his female client for a consultation at the Harley Street premises one week before the surgery but admitted that he did not know her name. The clinic was raided by the CQC and Dr Waghorn was found performing liposuction under anaesthetic in a basement room of the building. He had no assistants and no anaesthetist with him for this four-hour operation and was operating off the books. It seems likely that any professional indemnity insurance he did have would not have covered him as he had been given permission to use the room by a friend of a friend over the telephone; he had assumed this person to be the manager of the clinic, and it transpired that Dr Waghorn had no contract to practice with The Berkley Clinic.

In rejecting Dr Waghorn’s defence, the court found that “…it was not parliament’s intention to permit an unregistered surgeon, working entirely on his own, to perform an invasive surgical procedure on a patient on an ad hoc basis, in a one room hospital owned and managed by another or other persons unknown, and yet escape the reach of section 11(1) of the Act”.

New standards

Such cases provide a useful insight into ?the consultation procedure adopted by some cosmetic surgeons and the clinics they work in.

The Medical Protection Society (MPS) published its updated guidance on the level of information to be provided to consumer-patients in its Consent to Medical Treatment in the UK (2011). On the face of it, this promotes the use of a thorough consenting process over several sessions; the use of practical examples and the full and honest answering of the patient’s questions. The language used is not mandatory, however.

Cosmetic surgery is, by definition, an area where the invasive and potentially harmful procedure is not medically necessary. Some consumers will hear what they want to hear and some providers will simply tell them what they need to in order to persuade them to sign the treatment contract. However, adopting such a cavalier approach breaches the MPS’s advice: “Regardless of their lack of interest in the details, at a bare minimum they will still need to know why the investigation or treatment is being proposed and what it will entail in terms of pain or discomfort and anything they must do to prepare for it. When a patient does not want to hear all (or any of) the relevant details of an investigation or treatment, this should be documented in the medical records.”

Does this go far enough? The consumer is often provided with the information ?by a receptionist or sales person rather ?than by the surgeon. The surgeons themselves will usually be an ‘independent contractor’ rather than a direct ‘employee’ and may even fly in from abroad especially. Another format currently in vogue is for the consultation to take place in England with the surgery occurring at a sister clinic in Europe.

Money talks

This has particular resonance in relation to the cut-price cosmetic procedures offered by online traders such as Groupon or Amazon Local. These typically offer a substantial discount on the price of the treatment coupled with a time-sensitive offer of limited availability. It is not unusual for the offer to include a comment such as “This is a comfortable treatment making it a perfect option for children.”

The Office of Fair Trading (OFT) helpfully considered these offers when it investigated Groupon; concluding its investigation in June 2012 (Case Ref: CRE-E-26964). As a result of the investigation, the company directors agreed to change its practises. These included undertakings to make ?these offers fairer, more accurate and to take, “reasonable steps to ensure that ?health or beauty claims are supported by ?adequate substantiation.”

That such protections are necessary is shown by the General Medical Council’s (GMC) Fitness to Practise Panel’s disciplinary decision against Dr Aamer Khan (Hearing, 15 May-1 June 2012, GMC website). Among other things, Dr Khan unreasonably induced three patients to agree to undergo cosmetic surgery. He offered them a 10-15 per cent discount on the price of the surgery if the three women all agreed to have the surgery. Additionally, Dr Khan failed to keep a proper record of either the pre-operative consultation or the operations itself and failed to ensure that suitable intraoperative safety measures were in place.

Despite inducing his patients to undergo invasive, unnecessary surgery in an unsafe environment, Dr Khan was not struck off. In this case, the GMC felt that published restrictions on his ability to practice would suffice to protect the public.

These considerations are finding their way into voluntary European standards. The draft Aesthetic Surgery & Aesthetic Non-Medical Services document (CEN TC/403) is currently under discussion. The aim of this consultation process is, “to develop a European best practice standard for surgeons, doctors and nurses in private healthcare facilities” so we may yet see greater protection via the harmonisation of member states’ individual practices.

Until then, clinical negligence cases ?may well prove to be the most effective driver for protecting consumers. In?Johnson v Fourie [2011] EWHC 1062 (QB), ?the High Court awarded over £6m for ?the injuries Ms Johnson suffered. She had been persuaded to have considerably ?more radical cosmetic surgery than she initially wanted. This was carried out ?only three days after that consultation, calling into question whether there had ever been a proper cooling off period. ?This error was then compounded by ?the surgery being carried out below ?a reasonable standard.

Damages awards of this level get insurers’ attention. The policy limit in this case was £10m and the costs of pursuing this case to trial were substantial to both sides. It promotes the enforcement of the defence organisations’ own treatment standards and risks increased premiums for cosmetic providers whether surgical or non-surgical in nature.

Drawing these differing strands of recent developments together shows that consumer law is attempting to ensure that prevention is better than cure.