Cosmetic surgery receives a facelift

The Care Standards Act - which comes into force on 1 April 2002 - will regulate private cosmetic surgery practice for the first time.

But how effective will it be in safeguarding prospective patients? Keith Nightingale and Simon Kay look at the legal implicationsThere has been an explosion in demand for cosmetic surgery.

Fuelled by advertising and new technology and techniques, industry estimates by Gallup and Mintel put a value of 150 million on the cosmetic surgery market in 2000.

It is a lucrative business.It is also predominantly a private business.

Therefore, unlike the NHS, cosmetic surgery within the private sector is not governed by any compulsory guidelines.

There is no single body to define and oversee professional standards and training, and no legal restriction on who can carry out cosmetic surgery.A fully-qualified consultant plastic surgeon - of which cosmetic surgery is only a small part - working in the NHS must complete initial training, followed by a further six years of training leading to registration on the General Medical Council's specialist register in plastic surgery.

This is not the case in private practice, where anyone can - and does - perform cosmetic surgery operations, provided they satisfy two conditions: that they do not misrepresent themselves to the patients, and that the patients give their informed consent to any procedure to be carried out.Nor is there any effective regulation of clinics conducting surgical procedures.

Some providers such as the hospital networks BUPA and Nuffield voluntarily submit themselves to regulation and audit, but they account for only 20% of work carried out.

The majority, 80%, is undertaken by unregulated groups, including leading UK provider, Transform.

The result is a bipolar system, with qualified consultant surgeons jostling for business alongside doctors without specialist plastic surgery training for business in this field.

Meanwhile, patients run the gauntlet of uncertainty in knowing which providers, or consultants, they can rely on.

For injury victims, the only redress is civil action.

Those who proceed to legal action must prove that:l They were misled about the fitness of the individual to carry out the procedure, or;l They did not give informed consent, or;l The practitioner was medically negligent, and;l The injury was sustained as a direct consequence to the actions of the practitioner.For many, the process is too costly, too time-consuming, or too intimidating.

The Care Standards Act, which becomes law in April 2002, is set to address this.

It replaces the Registered Homes Act 1984 and is set to put in place a number of measures, which, on the face of it, will regulate independent healthcare provision, including cosmetic surgery.

Specifically, it will address:l Qualifications and training - from 1 April 2002, the Act states that all practitioners, including those in cosmetic surgery, must be 'appropriately recruited, trained and qualified clinicians';l Standards and regulation - the Act introduces a set of national minimum standards that describe levels of service, with which providers must comply, or face the risk or prosecution or closure.

These are to be enforced by a newly created National Care Standards Commission; l Advertising - the Act will require all advertising, including promotional literature, to comply with British Medical Association and Advertising Standards Authority guidelines, in terms of accuracy and clarity of information; l Information - the standards stipulate that patients should receive a consultation with the surgeon, who will undertake the procedure, and patients will be provided with verbal and written advice about the results they can expect and the risks associated with surgery.

They require patients be offered counselling and a two week cooling-off period prior to admission; l Complaints and redress - all independent healthcare establishments will be required to have a formal system for complaints to be reported and investigated, with an option for independent investigation by the National Care Standards Commission.

The move to regulate and to establish minimum standards is to be applauded.

But there is concern that the emphasis is on the minimum rather than the standards.

Where are the deficiencies? First, the qualification and training requirements apply only to those registering to work as cosmetic surgeons in private practice after 1 April 2002.

This still leaves existing unqualified practitioners unrestrained.There is still no single body responsible for setting and regulating a common set of standards across the cosmetic surgery profession.

Registration with a professional body does not necessarily ensure - except in the case of British Association of Plastic Surgeons and The British Association of Aesthetic Plastic Surgeons (BAAPS) membership - that practitioners are trained in the procedures they are to carry out.

The tighter regulation of advertising to adhere to Advertising Standards Authority standards, it is argued, will also not go far enough in safeguarding patients.

Without universal qualifications and standards for practising, there is a need for much tighter control over information supplied to patients, specifically regarding consultants, their qualifications and experience.

The value of the cooling-off period to eliminate pressurised sales techniques is reduced by an opt-out clause, enabling patients who wish to proceed earlier to do so with third-party support.The new complaints mechanism goes some way to monitoring standards, but it offers little to injured patients other than the chance to have complaints heard and investigated.

There is still no explicit responsibility to re-treat or to compensate patients for their injuries.In the meantime, one potential safeguard for patients is not addressed within the Act - GP referral.

As BAAPS states: 'All patients should be referred by their GP, or another consultant.

The GP knows the specialists in their area and is in the best position to choose the best treatment appropriate to the problem.'So, civil action - at the defendant's expense - continues to be the only recourse in the event of negligence by an unscrupulous practitioner.

The result is to discredit an entire profession with lowest common denominator standards and to continue to put patients at risk.

The Care Standards Act is a starting point and is to be welcomed.

But its imprecision leaves it wide open to interpretation, and it does not go far enough in protecting patients or weeding out poor practice.

For cosmetic surgery within the independent sector to be truly regulated and patients' interests safeguarded, there needs to be a universal set of standards imposed and regulated by a single umbrella body - the Royal Colleges of Surgeons are favourites - enforced through registration and audit.

Without these, the Care Standards Act, in the case of cosmetic surgery, may well prove impotent.Keith Nightingale is the senior partner at Nelson & Co solicitors in Leeds and president of the West Yorkshire Medico-Legal Society.

Simon Kay is a consultant plastic and reconstructive surgeon at St James Hospital in Leeds