By way of update following our last blog on this topic, the Scottish Parliament has introduced the Non-Surgical Cosmetic Procedures (NSCP) and Functions of Medical Reviewers (Scotland) Bill. Following scrutiny at all three stages of the legislative process, the Bill has now passed and awaits Royal Assent. In this blog, we highlight the key provisions of the forthcoming Act and discuss its anticipated impact.
Key provisions of the Bill
Meaning of NSCP
The Bill defines NSCPs broadly, as any procedure performed on a natural person which:
- pierces or penetrates the skin, whether by needle, chemical, medicine, heat, cold, light, laser, sound or electricity, and
- is one (or a combination) of the following procedures:
- Ablative laser treatment;
- Chemical peel
- Dermal micro-coring
- Injectable procedure
- Intravenous procedure
- Licenced procedure carried out with prescribed anaesthetic
- Licensed procedure carried out on an intimate area (other than non-ablative laser treatment for hair removal)
- Microneedling
- Subcision; and
- Thread lift
Notably, the Bill excludes procedures provided by or on behalf of the health service, those delivered by healthcare providers for the prevention, diagnosis, or treatment of illness and procedures related to clinical trials.
Introduction of offences relating to NSCPs
The Bill introduces two offences; for carrying out NSCPs outwith a permitted premises; and for providing any NSCP to individuals under the age of 18.
Permitted premises include registered independent clinics, registered independent hospitals, dental surgeries and medical practices operating under NHS agreements; medical practices operating under general medical services contracts; and registered pharmacies.
Regarding the age restriction of 18, a defence is available to practitioners who have taken reasonable steps to determine the client’s age and reasonably believed the individual to be 18 or over at the time the NSCP was provided. It is anticipated that clarification will be provided as to the requirements for practitioners regarding age verification in due course.
Enforcement powers
The Bill provides authorised persons (to be appointed by Healthcare Improvement Scotland) enforcement powers to enforce the legislation. These powers allow entry to, search of, and seizure of a clinic when there are reasonable grounds to suspect one of the above noted offences has been committed.
Penalties and individual culpability
The Bill sets out penalties for non-compliance. Individuals who commit either (or both) of the above offences could face an unlimited fine. Where an offence is committed by an organisation, responsible individuals (such as directors, managers, partners, or those managing the company’s affairs) may also be held personally liable if their consent, connivance, or neglect contributed to the breach.
What the new legislation means for practitioners
Practitioners will need to ensure their premises is one which is permitted by the Bill. For some practitioners, investment in new premises or additional staff will be needed to comply with the new legislative standards.
Practitioners should ensure they have robust age verification procedures in place to avoid delivering treatments to anyone under 18.
Businesses providing NSCPs should ensure all employees receive training on the new statutory requirements and are fully informed of the clinic’s obligations. Staff must understand what constitutes an NSCP, the new offences, and the importance of maintaining compliance to avoid breaches, and the possibility of substantial fines.
What the legislation means for insurers
The Bill creates several implications for insurers:
Claims exposure: As noted in our previous blog, the introduction of this legislation will likely result in greater scrutiny of current claims, especially those arising from treatments not performed in permitted premises or on underage clients. Insurers will need to pay close attention to supervision and training standards in relation to indemnity and coverage.
Policy adaptation: Insurers will likely wish to review and revise policy wording to ensure that coverage aligns with the new statutory requirements. This could involve updating eligibility criteria, exclusions, and conditions to reflect the changes in compliance and regulatory standards for providers of NSCPs.
Organisational liability: Directors and managers of insured organisations may be personally liable for regulatory breaches, and that heightened exposure is likely to drive increased demand for Directors & Officers cover and related indemnity products.
Looking ahead
The Bill currently awaits Royal Assent, the formal approval of the Bill by the King. Once Royal Assent is granted, the Bill becomes an Act of the Scottish Parliament. The legislation may not come into force immediately; its timing will be determined by the commencement provisions outlined in the Act, which specify when each provision comes into effect.
In the meantime, if you would like to discuss any of the topics raised in this blog, please contact our Insurance team or your usual Brodies contact.
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