Consumer Scotland welcomes the invitation to provide further input relating to the Non-surgical Procedures and Functions of Medical Reviewers (Scotland) Bill, following our response to the Call for Evidence and the Committee evidence session that we participated in on 2 December.
We support the use of a Licensing Order to regulate lower risk procedures, alongside the Bill which will regulate higher risk procedures. We generally welcome the provisions in the Order, but note that it will be important consumers are protected under each of these mechanisms independently, and that it must be easy for consumers to understand how the service they wish to access interest is regulated. To support the effectiveness of the Order we identify a number of actions that can be taken to strengthen the regulatory framework, in three broad areas. We set out details of these below.
Consumers must be provided with relevant information before purchasing a procedure
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- Consumers need to know and understand the protections that are there for them. In the first instance, providers must provide them with clear, accessible, and accurate information to help them make informed choices about whether, where, and what treatment to purchase. To this end, we have recommended that the Scottish Government amends the Bill to allow Scottish Ministers to specify by Regulations or Statutory Guidance the types of information that should be provided to consumers. We note that Schedule 2, Article 7 of the Order includes as a mandatory licensing condition that “information, in an easy to understand format, is provided to prospective clients to explain (i) the process for administering non-surgical procedures, (ii) the risks of each procedure, and (iii) the aftercare requirements of each procedure”. We welcome the inclusion of these duties, but recommend including an additional requirement to inform consumers about the provider’s complaints process, signposting to advice, and redress options.
- Whether a consumer is considering a procedure regulated by the Bill or by the Order, it should be equally easy for them to access information about the quality of providers to help them make an informed decision about where to go – without having to know in advance whether a procedure is subject to HIS-regulation or to the Order.
- Procedures regulated in the Bill can only be carried out in settings regulated by Healthcare Improvement Scotland (HIS). The HIS website already includes a publicly accessible register of HIS-regulated clinics, including contact details, services the clinic has registered to provide, and inspection reports. We have also suggested that the Scottish Government should work with HIS to explore how the register can be made more accessible to consumers.
- Consumers using services which are regulated under the Order should also be able to access comparable information, to help them make an informed decision. It is important that consumers have a clear, streamlined journey between the two parts of the regulatory system, to enable them to make well-considered, fact based decisions. The Scottish Government should work with HIS, industry representatives, and consumers to explore what this consumer information should look like and how the provision of it should be resourced. This may include options for a single or connected web-portal that provides consumers with the required information from across both parts of the regulatory system. We recommend that the Order requires that any HIS-regulated providers who carry out lower risk services should also be required to provide information under the terms of the Order that allows consumers to easily search and find information about providers.
- The Scottish Government should consider including more conditions to obtaining and renewing licences, to help consumers make informed decisions about providers. We note that Schedule 2, Article 7 imposes licensing conditions that the premise displays a notice advising (i) that a non-surgical procedure will not be carried out on any person under the influence of alcohol or drugs, and (ii) that a non-surgical procedure will not be carried out on any person under the age of 18. There is scope here to include further requirements – for example, requirements to display information regarding membership of professional bodies and dispute resolution schemes, or other information materials that comply with Statutory Guidance - as a minimum requirement for licensing. To ensure that it is as easy and quick as possible for officers to carry out their inspections a clear checklist of what information should be displayed by premises should be produced. We also recognise that a newly-established provider will not have any data regarding outcomes and complaints, and some information can only be required during follow-up inspections.
- We have recommended that the Scottish Government works with the Advertising Standards Authority and Committee of Advertising Practice to explore how clear and appropriate guidance can be provided to ensure advertisements are accurate, fair, and legal once the Bill comes into force. We are aware that the ASA has already expressed the will to do so. Such joint work should also seek to ensure that providers of ‘lower risk’ procedures regulated through the Licensing Order are subject to consistent advertising regulations and restrictions to ensure clarity and protection for consumers.
- The risks associated with undergoing the types of procedures covered by the Order cannot be eliminated and there must be systems in place to enable consumers to secure redress if their procedure causes them harm. We recommend:
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- Encouraging providers to have insurance and indemnity arrangements in place, similarly to tattoo and skin piercing providers. The Scottish Government should work with COSLA to explore if this could be achieved through good practice and consistent licensing conditions on a local authority level, or whether regulation through the Order should be required.
- Providers should have a duty to issue consumers with information about how they can secure redress if there is a problem with their procedure. Under the section around information we recommended including an additional requirement into Schedule 2, Article 7 to ensure providers inform consumers about the provider’s complaints process, signposting to advice, and redress options.
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Helping businesses comply whilst deterring rogue traders
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- We have previously noted the importance of ensuring that businesses can access appropriate advice and support to enable them to comply with the new regulations and standards. This will help responsible businesses to continue to offer services to consumers in the appropriate way, whilst ensuring that consumers can choose safe providers.
- We recognise that the introduction of new regulation in any sector comes with a risk of unintended consequences, such as procedures continuing to be provided outside of the regulations but with less public information about these, presenting a potentially even higher level of risk for consumers. We identify three key elements to mitigate this risk:
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- public awareness raising to help consumers recognise and understand the regulatory system, enabling them to confidently access regulated providers and easily identify when a provider appears to be operating outside of the regulatory requirements.
- information and support to help businesses wishing to offer services to achieve regulatory compliance
- clear, practical enforcement powers that are sufficiently resourced
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- We note that the Order seeks to amend Section 3 of the 1982 Act to extend the determination period for licensing applications by local authorities from 6 to 12 months. We recognise that in the interest of small businesses currently providing these services, there is a transition arrangement allowing them to practice pending the outcome of their application. However, we would welcome clarification on how consumers will be protected against prolonged exposure to unlicensed and potentially unsafe practices during this transitional period.
- We have previously recommended requirements for professional registration, indemnity and insurance and signposting to professional regulatory and complaints bodies be examined through secondary regulations. As part of this process, it would be important to also establish the requirements on these matters that should be extend to providers of services subject to the Licensing Order, and how these standards will be enforced.
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Ensuring enforceability through a realistic framework and appropriate resourcing
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- We welcome the proposed creation of a power of seizure in Section 5 of the 1982 Act and the proposed extension of powers of entry to and search of unlicensed premises in Section 6 of the 1982 Act. An extension of Local Authority licensing duties to include non-surgical cosmetic procedures should be subject to specific consultation with Local Authority and Environmental Health representatives, to ensure that the scheme is workable, and that sufficient resourcing is in place to support staffing, training, administration, and enforcement of the scheme. A practical, deliverable scheme is important to ensure that the licensing arrangements deliver the required outcomes for consumers.
- We note that the Society of Chief Officers of Environmental Health in Scotland does not anticipate a significant number of new licensing applications following this Order and considers it unlikely that the income from any increase would support an increase in the staffing complement for each council. This would mean that the additional licence applications will need to be covered by existing officer numbers, which might impact on other functions delivered by Environmental Health.
- We would be happy to provide further details on any of these points, should that be helpful.