Body dysmorphia disorder and cosmetic surgery
The establishment of social media in 1997 has fostered better information and communication mechanisms and with this it has its pitfalls.[1] Cyber pressure and cyber bullying based on ones looks have increased the number of people suffering from body dysmorphia disorder (BDD) otherwise referred to as imagined ugliness syndrome. BDD is a “mental health condition where a person spends a lot of time worrying about flaws in their appearance”.[2] Most often, this mental illness makes a person dislike their physical characteristics, and in an effort to change it, the majority of patients choose cosmetic operations.
We acquire standards of beauty through exposure to culturally imposed ideals. These ideals place enormous pressure on people to adhere to the current beauty standards, and as a result, they have a negative impact on how people perceive themselves and their bodies. Its four components include the relative importance of appearance, the degree of dissatisfaction with appearance, the physical reality of appearance, and the perception of appearance. Various processes, such as expectations, motivations, emotions, previous knowledge, and memory, can shape perception. It manifests differently in various patients as some patients’ perceptions have been molded in a way that makes them inconsistent with their environment.[3]
Cosmetic procedures are grouped into two; non-surgical cosmetic procedures and surgical cosmetic procedures. Non-surgical cosmetic procedures are those procedures that do not involve any form of surgery (to make an incision or to remove tissue) and are quite simple to perform not unless the patient has some underlying concerns that may complicate the operation. Examples of these procedures include; Botox, filler injections.[4] Surgical cosmetic procedures on the other hand “where a person chooses to have an operation, or invasive medical procedure, to change their physical appearance for cosmetic rather than medical reasons”.[5] Examples of these procedures include; breast enlargement and liposuction.
Cosmetic surgery in Kenya
There has been an increase in patients opting for cosmetic procedures in Kenya with some who need it because of accidents they incurred and for some because of self-image reasons. Clinics are propping up in various parts of Nairobi, particularly in the upscale parts that is Kilimani, Karen and West lands. Most of these clinics openly advertise the procedures they provide as well as their prices, which are frequently prohibitively high. The price of these services may encourage patients to travel abroad to have their procedures completed, discouraging aesthetic procedures in the country, which can be a major source of revenue for the country. Worse yet, it may encourage the establishment of sham clinics that advertise the same services within the country for a much lower price.
One of the stories that caught the attention of the media was that one of June Wanza. A woman who passed away as a result of a botched breast augmentation procedure. Her intestines were punctured during the augmentation treatments, and the sepsis that followed ultimately took her life. Her passing made headlines across the country, particularly after the Kenya Medical Practitioners and Dentists Board (KMPDB) determined that the surgeon who oversaw the procedure, Dr. Martin Ajujo, and the anesthesiologist, Dr. Evans Charana, did not have the credentials necessary to operate on Ms. June Wanza[6]. This story, therefore, raises concerns about the quality of medical care patients to get in these clinics. So how safe are patients in the hands of cosmetic surgeons in Kenya?
Issues that may arise
Several legal issues arise out of the carrying out of cosmetic procedures they include; some of the products used in these procedures are substandard. These can be the silicone breast implants that are used in breast enlargement surgeries, Botox, fillers and chemical peels that have not been approved by the Food Drug Administration (FDA approved). That may end up adversely harming the health of the patient. Owing to the fact that there are no Kenyan legal standards that prescribe the required standard for such products (cosmetic medical supplies) in this field of medicine. Therefore, it is more likely that unscrupulous medical personnel may try to cut corners in a bid to make more profits.
Another issue that may arise is that of false advertising with exaggerated wording and images to lure the consumer. The effects of this may be to mislead the consumers and exaggerate the benefits of these procedures, which falls under false representation. However, this may be quite challenging to regulate as some of these advertisements come from social media influencers.
The other issue that may arise is that of informed consent. In the case of CNM vs Karen Hospital Ltd, the tribunal defined “informed consent” as, “Informed consent refers to consent given with the full knowledge of the risks involved, probable consequences and the range of alternatives available.” Additionally, the tribunal stated that “in medical treatment, requiring invasive procedures, the doctor or health care personnel is required to disclose sufficient information to the patient to enable the patient to give an informed consent”.[7] The issue of informed consent mainly manifests whereby some patients may engage in cosmetic procedures without having comprehensive information on the procedures being done to them. Most surgeons and patients sign contracts before conducting cosmetic procedures. And in most cases, the surgeon has the upper hand as he has a “pool” of knowledge of the how, why and what of medicine. Consequently, putting the patient to fend for themselves as the caveat emptor rule applies. Although one may get a win by suing the surgeon for negligence this is not always clear cut as various proponents have to be proved. That is there is a duty of care owed to the patient, a breach of that duty, there being proximate cause linked to the surgeon’s actions (which is quite difficult to prove in practice) and the patient suffering as a result of those actions.
Legal framework
One may also argue that cosmetic surgery procedure is a personal choice and a “rich” people problem hence the state should not get involved however some patients who opt for these procedures have BDD which is a mental disorder. According to the World Health Organisation (WHO), “health” means a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity.[8] This therefore brings in the matter of mental health which is the government’s concern as it affects public and individual health.
According to studies, BDD patients should first receive treatment for their psychological condition before undergoing surgery because doing so could have severe or even fatal repercussions for the surgery. Disgruntled patients may try to exact revenge on the surgeon who they think made their defect worse; this might take the shape of legal action, physical attack, or even murder.[9]
Sadly, mental health issues have not been expressly reflected in the Mental Health Act as The Act only goes a step forward to define “person suffering from a mental disorder” as “a person who has been found to be so suffering under this Act and includes a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol of substance abuse.”[10]
The scope of the aforementioned provision is fairly limited because it only applies to individuals with psychopathic mental illness, those who have mental impairment due to alcohol or drug abuse, and those deemed to be suffering under the Mental Health Act. It is therefore essential to pursue a wider perspective in order to address the many prevalent mental health illnesses. The World Health Organisation acknowledges that a clinically significant disturbance in a person’s cognition, emotional regulation, or behaviour is an indication of a mental disorder. And that it frequently results in distress or functional impairment in key areas.[11] This is a far more comprehensive approach that recognises a variety of mental problems that Kenya ought to embody.
A constitutional right that may be threatened by the aforementioned legal issues is under Article 46 (1) of The Constitution of Kenya, 2010 that states, “Consumers have the right –
- To goods and services of reasonable quality
……………………………..
- To the protection of their health, safety, and economic interests.”
The application of this law applies to the standard of medical goods and substances to be used on patients. As of yet the Kenya Bureau of Standards and the Pharmacy and Poisons Board have not made-up guidelines to be adhered to in respect to cosmetic medical supplies. This, therefore, leaves a leeway for the entry of sub-standard cosmetic medical supplies into the country. Which ultimately affects the health and safety of the patients.
Additionally, the use of subpar aesthetic medical products also poses a threat to the right to life as envisioned by Article 26(1) of the Constitution of Kenya. Heavy metals such as tin, zinc, chromium, arsenic, lead, antimony, nickel, or copper may be present in some of these silicone breast implants.[12] Which could harm the function of the brain, lungs, kidney, liver, blood composition, and other vital organs, as well as cause health issues like lower energy levels.[13] The court in Federation of Women Lawyers (Fida- Kenya) & 3 others v Attorney General & 2 others; East Africa Center for Law & Justice & 6 others (Interested Party) & Women’s Link Worldwide & 2 other ( Amicus Curiae) reiterated that “the right to life is the most sacrosanct right upon which all other rights under the Constitution are hinged hence there is no use for the Bill of Rights where there is no life”.[14] The application of this case law is that when the right to life is threatened then so are other rights.
What has been done thus far?
Recently the Kenya Medical Practitioners and Dentists Council (KMPDC) recognized Plastic and Reconstructive Surgery as one of the approved specialties in Kenya. The council also set out the required qualifications for one to be recognized as a specialist. They include having a minimum duration of 3 years of training, and a minimum experience of 2 years before specialist recognition.[15] It is also worth noting that a specialist ought to be a medical practitioner or dentist who has completed an approved post graduate training programme in a particular field of medicine or dentistry, and who has thereafter gained sufficient experience and demonstrated to the Council’s satisfaction adequate knowledge and skill, in his chosen field.[16] Such measures set by the KMPDC are encouraging as it is a step towards regulating the specialists going into the market.
Additionally, KMPDC also requires medical practitioners and dentists to renew their practicing licenses and upon late renewal imposes a fee.[17] Such measures ensure that medical practitioners and dentists act within the law and meet the high standards of care. The Registrar of the KMPDC is empowered under the Medical Practitioners and Dentists Act to publish in the Gazette as soon as may be practicable after registration the name of every medical practitioner or dentist registered in the register.[18] Furthermore, the registrar shall once every year, as soon as convenient after 1st January, but not later than 31st March, publish in the print or electronic media as approved by the Board, a list containing the names, qualifications, and registered addresses of all registered medical and dental practitioners.[19]
Other jurisdictions
Australia recently implemented strict new regulations around cosmetic surgery through the Australian Health Practitioner Regulation Agency (AHPRA) and the Medical Board of Australia (MBA). The new regulations demand a higher standard for practitioners, stricter advertising regulations, and a new system of accrediting cosmetic surgery. These criteria have the effect of introducing new minimal standards for the education, training, and credentials of Australian medical practitioners requesting MBA accreditation.[20]
Further, The government of the United Kingdom recently declared its desire to establish a licensing system for non-surgical cosmetic procedures including Botox and fillers. These precautions are meant to safeguard people from those who operate illegally. The new amendment to the Health and Care Bill also aims to outlaw all types of media advertising these procedures because many of these practices target minors.[21]
Since cosmetic surgery is a relatively new field of medicine, most states are having trouble regulating the sector without impinging on the rights of consumers. Therefore, resulting in most states taking a lenient or no approach at all.
What can be done?
Particularly when it comes to BDD patients who choose to get cosmetic surgery, the legislation should adopt a more paternalistic stance. This can be accomplished by requiring that the patient and the surgeon meet for a number of sessions to assess the necessity and value of the surgery before proceeding. Although it may be claimed that this restricts consumers’ access to market services. Given that it directly affects a person’s life and health, this is a vital strategy.
Before receiving their license, cosmetic surgeons may be placed on probation for a year in order to work towards earning it. The council keeps an eye on the surgeon’s operations during this time. This is more of a quality control measure to make sure that only skilled cosmetic surgeons are allowed to practise.
The creation of a new organization under the KMPDC to control cosmetic surgery in the nation. This is because this area of medicine is still relatively new to us, and as a result, clear and precise laws must be in place to deal with dishonest people who might take advantage of unwary consumers.
Conclusion
In light of the aforementioned, it is fair to say that cosmetic surgery procedures are relatively new in our country and not much has been done specifically to address this new field in medicine. Given the advancement of science and technology, these procedures will only get better and more complicated, so there is a need for the law to actively participate in regulating this field as it grows.
[1] Esteban Ortiz Ospina, The rise of social media (18 September 2019) < https://ourworldindata.org/rise-of-social-media > accessed 19 March 2023.
[2] NHS, Body Dysmorphia Disorder (BDD) (14 October 2020) < https://www.nhs.uk/mental-health/conditions/body-dysmorphia/ > accessed 18 March 2023.
[3] Higgins, S., & Wysong, A, ‘Cosmetic Surgery and Body Dysmorphic Disorder – An Update. International Journal of Women’s Dermatology’ (2018) 4(1) Int J Womens Dermatol 43.
[4] Mount Sinai, Non- invasive procedures (2023) < https://www.mountsinai.org/care/surgery/services/plastic-surgery/aesthetic/non-invasive-procedures > accessed 24 February 2023.
[5] Royal College of Surgeons of England, What is Cosmetic Surgery?, < https://www.rcseng.ac.uk/patient-care/cosmetic-surgery/what-is-cosmetic-surgery/ > accessed 24 February 2023.
[6] Aggrey Omboki, Nairobi clinic under scrutiny after botched cosmetic surgery (28 June 2020) < https://nation.africa/kenya/news/nairobi-clinic-under-scrutiny-after-botched-cosmetic-surgery-54412 > accessed 18 February 2023.
[7] HAT No.008 of 2015.
[8] Constitution of the World Health Organization (adopted 22 July 1946, entered into force 7 April 1948).
[9] Higgins, S., & Wysong, A, ‘Cosmetic Surgery and Body Dysmorphic Disorder – An Update. International Journal of Women’s Dermatology’ (2018) 4(1) Int J Womens Dermatol 43.
[10] Mental Health Act, s 2.
[11] World Health Organization, Mental disorders (8 June 2022) < https://www.who.int/news-room/fact-sheets/detail/mental-disorders > accessed 20 April 2023.
[12] Victoria Martindale, Andre Menache, ‘The PIP scandal: an analysis of the process of quality control that failed to safeguard women from the health risks’ (2013) 106 (5) JR Soc Med 173.
[13] Monisha Jaishankar, Tenzin Tseten, Naresh Anbalagan, Blessy B. Mathew, Krishnamurthy N. Beeregowda, ‘ Toxicity, mechanism and health effects of some heavy metals’ (2014) 7 (2) Interdiscip Toxicol. 60.
[14] [2019] e KLR.
[15] Kenya Medical Practitioners and Dentists Council, Specialties (2021) < https://kmpdc.go.ke/specialities/ > accessed 17 February 2023.
[16] Medical Practitioners and Dentists Act, s 2.
[17] Medical Practitioners and Dentists Act, s 14 (2).
[18] Medical Practitioners and Dentists Act, s 9 (1).
[19] Medical Practitioners and Dentists Act, s 9 (2).
[20] Becca Whitehead, Cosmetic clean-up: tough new rules for cosmetic surgery (17 April 2023) < https://insightplus.mja.com.au/2023/13/cosmetic-clean-up-tough-new-rules-for-cosmetic-surgery/ > accessed 20 April 2023.
[21] Department of Health and Social care, Government to crack down on unregulated cosmetic procedure ( 28 February 2022) < https://www.gov.uk/government/news/government-to-crack-down-on-unregulated-cosmetic-procedures > accessed 20 April 2023.