The medical exception and cosmetic surgery: Culpable doctors and harmful enhancement?

Dannielle Griffiths

Alexandra Mullock

In this post, Danielle Griffiths and Alexandra Mullock consider whether harmful non-therapeutic cosmetic surgery should be regarded as a legitimate medical treatment. Danielle is Research Fellow in Bioethics and Law within the institute for Science, Ethics and Innovation at the University of Manchester and Alexandra is Lecturer in Medical Law at the University of Manchester.

Should non-therapeutic cosmetic surgery causing harm be regarded as legitimate medical treatment? As a matter of public policy, the criminal law prohibits consensual harmful activities unless they can be justified because they are medically necessary, or carried out in pursuit of legitimate sporting activity. Where surgery is concerned, provided it is in the best interests of the patient and is carried out by a qualified healthcare professional, there is no question that it falls within the medical exception to the criminal law and is thus lawful. Surgeons are permitted to do things that lay people are not. The medical exception distinguishes legitimate ‘medical’ activity from other illegitimate consensual activity causing harm (e.g. sado-masochism), and neither consent nor amateur medical expertise will operate as a defence to harming others. But what about harm occurring from surgery performed in pursuit of a more beautiful or more youthful appearance? 

Cosmetic surgery began as a branch of surgery with clearly therapeutic aims but many of the operations carried out in recent years seem to have dubious, if any, therapeutic purpose and is often harmful. Yet such surgery still falls within the medical exception. And worryingly, current trends and demands for certain types of non-therapeutic cosmetic surgery pose particular risks. For example, ‘designer vagina’ surgery has risen in popularity in recent years, particularly with younger women. In 2013 the British Society for Paediatric and Adolescent Gynaecology stated that there was no scientific evidence to support labia reduction, and that health risks, particularly to girls under 18, included bleeding, infection and a loss of sensitivity. Such significant harm occurring from botched cosmetic surgery or surgery that does not achieved the desired results, leave people not only with scars but also a hefty bill to pay. And the number of people having non-therapeutic cosmetic surgery is increasing, as it becomes more accessible and normalised, yet this area of medicine is poorly regulated. Evidence from the Medical Defence Union suggests that cosmetic surgery is performed less carefully than medically necessary surgery: 45% of negligence claims following cosmetic surgery succeeded compared to just 30% for other surgery. This might be due to the lack of regulation of cosmetic surgery carried out within a commercial environment, where profit may be prioritised above patient safety, as highlighted in the Keogh Review (2013). Also, cosmetic surgery patients - in contrast to patients requiring medically necessary surgery - are healthy to begin with. And when surgery does go wrong and harm is caused, the NHS, rather than the responsible private clinic, is often left to make good the harm and so we may all bear the cost when this type of surgery harms patients. Feminists perspectives have shown how the “choice” to undergo cosmetic surgery is gendered, classed, raced, and (hetero)sexualised, and it is often the most vulnerable who “choose” to undergo the more extreme and harmful forms of such surgery. And what about the role of doctors in encouraging the growth and normalisation of non-therapeutic cosmetic surgery? As a highly regarded profession, the involvement of doctors in such surgery may provide a stamp of approval for these socially damaging norms. As FG Miller and colleagues have argued (2000, Cambridge Quarterly Healthcare Ethics) in relation to advertisements for cosmetic surgery:

the willingness of physicians to provide treatments may operate as a legitimation in the minds of patients. That professionally qualified physicians are prepared to offer invasive procedures may encourage ambivalent patients to submit to medical intervention. 

In a chapter of a forthcoming edited collection (The legitimacy of medical treatment: What role for the medical exception? S Fovargue and A Mullock (eds), Routledge), we question whether the medical exception, which renders serious harmful acts lawful in the medical context, should apply to non-therapeutic cosmetic surgery. We contend that non-therapeutic, consumer orientated cosmetic surgery lies outside of the aims of medicine, and that the harmful practices inherent within this consumerist form of surgery means that its place in the medical exception should be questioned. Of course there are other treatments such as reproductive technologies which lie on the periphery of medicine, that are increasingly consumerist in nature and have little therapeutic benefit. Nevertheless, we contend that there is something particularly harmful about cosmetic surgery which justifies re-appraising the applicability of the medical exception.

We do however consider that restricting access to surgery would be an affront to patient autonomy and, so long as they are informed of risks, patients have the right to access such treatments just as they have the right to make other potentially unwise lifestyle decisions. If excluded, then patient consent alone could provide justification for non-therapeutic cosmetic surgery. For this to happen, we argue that a more robust approach to informed consent is necessary to better safeguard consumers of non-therapeutic cosmetic surgery.

The current approach to gaining consent to non-therapeutic cosmetic surgery in England and Wales is problematic. Firstly, the commercial nature of cosmetic surgery means that “deals” and finance packages can tempt the vulnerable to sign-up without appreciating the serious risks. Secondly, the law sets the standard low in relation to real consent and to ensuring a patient has understood the risks. The General Medical Council’s vague guidance means that doctors are able to interpret their obligations to suit their own agenda. Such a pragmatic approach to consent may be necessary for some medically necessary surgery, where in the course of saving lives a doctor could be forgiven for not ensuring all risks are fully understood. It is not enough, however, for non-therapeutic surgery where the risks are not justified by any medical benefit. An instructive approach may be to follow The Medicines for Human Use (Clinical Trials) Regulations 2004, which state that consent must be ‘informed’ in respect of the nature, significance, implications, and risks of the trial, and must be given in writing. Notwithstanding the ethical concerns surrounding consent for such human trials, we suggest that this could be a starting point for considering a contextually appropriate and more robust approach to obtaining consent for non-therapeutic cosmetic surgery.