The licensing power, and its status

5.2.1What section 180 actually does

It is an enabling provision. It permits the Secretary of State to make regulations providing for a licensing scheme in England, and it sets out the kinds of things such regulations may cover: which procedures are within scope, the conditions attached to a licence, the role of local authorities in administering it, offences for operating without one, and the treatment of premises as well as individuals.

What it does not do is create the scheme. Enabling powers of this kind are common in health legislation and they are used when Parliament wants to establish the framework while leaving the detail to be worked out through consultation and secondary legislation. That process can take a considerable time and does not always conclude.

5.2.2The consultation

The Department of Health and Social Care ran a consultation on the licensing of non surgical cosmetic procedures in England, addressing which procedures should be in scope, what training and qualification requirements should attach, what standards premises should meet, and how the scheme would be enforced. The consultation documents are on gov.uk and are worth reading by anyone with an interest, because they set out the range of options the government was considering.

A consultation is a stage rather than a decision. What a reader should take from it is that the questions this document raises about who may inject, in what setting, with what training, are questions the government has itself identified as unresolved.

5.2.3What applies in the meantime

Quite a lot, and it is worth setting out, because the absence of a licensing scheme is sometimes described as though the sector were entirely unregulated. It is not.

• Medicines law governs prescription only medicines, including botulinum toxin, and controls who may prescribe and supply them.
• Medical devices regulation governs the products themselves, including conformity assessment, marking, and vigilance reporting to the MHRA.
• Professional regulation governs registered healthcare professionals, whatever setting they work in. A registered nurse injecting in a salon remains a registered nurse.
• Advertising rules apply through the CAP Code and the ASA, and consumer protection law applies to misleading practices.
• The Botulinum Toxin and Cosmetic Fillers (Children) Act 2021 creates offences relating to under eighteens in England.
• General law applies: the law of negligence, consumer law, health and safety law, and in serious cases the criminal law.
• Local authority licensing of special treatments exists in some areas under local legislation, and its scope varies considerably.

The gap is specific rather than total. What is missing is a national requirement that a person performing these procedures hold a licence demonstrating competence, and that the premises meet a defined standard. That is a significant gap. It is not the same as no regulation.

5.2.4Devolution

Section 180 concerns England. Scotland, Wales and Northern Ireland have their own arrangements and their own policy processes, and independent healthcare regulation operates differently in each. A reader outside England should look at their own nation's regulator rather than assuming the English position applies.

5.2.5What this means for you now

Three practical consequences.

First, do not rely on an assumption that regulation has arrived. If someone tells you the sector is now regulated, ask what specifically they mean, because a great deal of confident commentary about this has run ahead of the legal position.

Second, the checks you can perform yourself matter more in the absence of a scheme, not less. Registration, training, indemnity, premises and emergency arrangements are all things you can ask about directly, and they are covered elsewhere in this chapter.

Third, if a licensing scheme does come into force, the questions worth asking will change. This document will be revised when it does, and the evidence register records what we have said so that revisions are visible rather than quiet.

5.2.6Checking the position yourself

The authoritative source is legislation.gov.uk, which publishes the text of the Act and records commencement information, and gov.uk, which publishes consultations and government responses. Both are free and neither requires any expertise to use. If you want to know whether a licensing scheme is in force, those are the places to look, and they are more reliable than any commentary including this article.

This document is a general reference and is not legal advice. Where the position matters to a decision you are making, particularly a commercial one, take advice from someone qualified to give it.