Should body modification be regulated in the same way as cosmetic surgery?

It was announced recently that Brendan McCarthy (Known to his clients as “Dr Evil”), a licenced tattoo artist had pleaded guilty to three charges of Grievous Bodily Harm (GBH) with intent for the body modification removal of an ear, and nipple and splitting of the tongue.

Whilst body modifications have become more common and popular in recent years, there is no regulation of these procedures. Following Mr McCarthy’s legal battle, the courts have now set a precedent.

What is the current situation with body modification procedures?

Beyond the more commonly known modifications of tattoo art and piercings, modern body modification has developed into more invasive and extreme changes to the body including branding, amputation, and transdermal/subdermal implants amongst others.

Until recently the practice of body modification has been left in a grey area with those practicing these services believing that with client consent, they were acting within the confines of the law.

A licence had be obtained in order to perform tattoo and piercings but there is no formal degree or qualification required.

What of these more invasive body modification procedures more akin to cosmetic surgery?

In the UK surgical procedures must be carried out by surgeons who have undergone and qualified in specific medical training. These surgeons are registered with the General Medical Council (GMC) and are highly regulated, performing a set number of procedures every year to remain compliant.

Before a cosmetic procedure is undertaken, a surgeon must consider and adhere to the NICE Guidelines (National Institute for Health and Care Excellence). These guidelines require amongst others, that a patient’s capacity, psychological needs and medical history are considered before a procedure is carried out.

This has sparked controversy as to whether these body modifications should therefore be carried out by medical professionals, which is frequently met with resistance as health services refuse to carry out the procedures as they are often seen to provide no medical benefit.

It is this resistance that has caused patients to seek alternative assistance. In the UK, there is no regulation or laws on unqualified persons performing lip filler, laser hair removal and injection procedures

Why is a patient’s consent not required for body modification?

In the case of Mr McCarthy, it was argued that all the clients who underwent the procedures consented to him carrying out the work and were happy with the results to date. An online petition has since been set up and signed by more than 13,000 people to confirm that Mr McCarthy is “knowledgeable, skilful and hygienic”. It was argued that in each of the procedures, the client’s needs were taken into account providing the opportunity to stop.

So why does this not reflect in the legal outcome of the case?

In relation to the law, there are a small group of recognised exemptions that allow for consent to be used as a defence to GBH. The most common of these groups include consent for contact sports, and surgery. At present tattoos and piercings fall under these exemptions, but the body modifications carried out by Mr McCarthy did not.

A defence was raised on this basis at the Court of Appeal on behalf of Mr McCarthy which was rejected on the basis that “We can see no good reason why body modification should be placed in a special category of exemption from the general rule that the consent of a general individual to injury provides no defence…”. Permission to appeal at the Supreme Court was denied.

It was added by His Honor Judge, Amjad Nawaz that “There is, to our minds, no proper analogy between body modification, which involves the removal of parts of the body or mutilation as seen in tongue-splitting, and tattooing, piercing or other body adornment. What the defendant undertook for reward in this case was a series of medical procedures for no medical reason … The personal autonomy of his customers does not provide the appellant with a justification for removing body modification from the ambit of the law of assault”.

On this basis, it is suggested that consenting persons undergoing body modifications outside of tattoo and piercings could be deemed as consenting victims of abuse.

Under the landmark case of Montgomery v Lanarkshire Health Board [2015], the ambit of informed consent was changed dramatically for patients undertaking cosmetic procedures. This requires surgeons to provide the patient with diligent explanation of material risks that could arise and moved away from the blind signing of consent forms.

It is inferred that the Court of Appeal ruling for Mr McCarthy would therefore deem Body Modification within the realms of cosmetic surgery which would be subject to this strict form of consent. As Mr McCarthy is not a qualified surgeon, his charges of GBH could not be defended.

What will happen about the future practice and regulation of Body Modification?

It is highly likely that following this case, many parlours practicing body modification will cease to provide these services at the risk of facing a charge of GBH. This may drive the industry of body modification underground, causing those who wish to obtain it to seek procedures from very inexperienced and unqualified persons. This has been seen in unregulated cosmetic surgery for those travelling abroad for cheaper deals.

Much like the need for regulation in lip filler procedures, it is argued that body modification will require new laws, regulation or licencing in the wake of the precedent set by the Court of Appeal.

It was stated by West Midlands Police that Mr McCarthy conducted his procedures without anaesthetic or any life-saving equipment if the surgeries went wrong. It was also revealed that out-of-date pre-injection swabs, anaesthetic gel, stitching thread and needles were also found.

It is therefore recognised that either medical training or regulation should be implemented within the body modification sector. Alternatively a shift in the attitudes and acceptance of those seeking body modification from the NHS and private practice should be encouraged to reduce the danger of those seeking body modification elsewhere at a greater risk.