Redefining Consent and Liability: What NICE's proposed OCD and BDD screening guidance could mean for aesthetic practitioners

The regulation of the cosmetic sector has received increasing attention in recent years, with a growing focus on patient safety and the risks associated with procedures being performed by individuals who may not have appropriate training or qualifications.

The Government itself has recognised concerns surrounding the limited regulation of the sector and the potential risks this poses to the public.

Industry bodies such as Save Face have also reported significant numbers of complaints relating to non-surgical cosmetic procedures¹.

Against that background, the Government has taken steps towards greater regulation of the sector. Section 180 of the Health and Care Act 2022 gave the Secretary of State power to introduce a licensing regime for specified non-surgical cosmetic procedures in England, including provision for personal and premises licences. 

There have also been changes to professional prescribing requirements. From 1 June 2025, Nursing and Midwifery Council (NMC) registered prescribers have been required to undertake a face-to-face consultation before prescribing non-surgical cosmetic medicines, including certain anti-wrinkle injections². 

It is against this evolving regulatory landscape that NICE published draft guidance in September 2026 aimed at improving the identification of obsessive-compulsive disorder (OCD) and body dysmorphic disorder (BDD)³. Significantly for the cosmetic sector, the draft recommendations advise healthcare professionals providing cosmetic treatments to ask structured questions about appearance-related concerns and document their findings. Where responses suggest that a patient may have BDD, NICE's draft guidance recommends referral for specialist assessment rather than proceeding with the procedure at that stage.

In cosmetic negligence claims, disputes often arise where a patient is dissatisfied with the outcome because the results have failed to meet their expectations. Such cases may become particularly complex where a patient has OCD or BDD, especially where those conditions have influenced their expectations of, or response to, the treatment outcome. This raises an important question for the industry: what level of responsibility falls on practitioners to identify these conditions before treatment, particularly where the treatment is being provided by a non-medically trained practitioner operating outside a traditional healthcare setting, e.g. a beauty salon?

Much is likely to depend upon the quality and content of the initial consultation and assessment. In practical terms, practitioners may therefore wish to consider whether their consent forms, consultation records and other documentation adequately capture relevant appearance-related concerns and demonstrate that appropriate enquiries have been made.

From a claims perspective, the quality of contemporaneous documentation may become increasingly important. Where the NICE recommendations apply, a failure to ask and document the recommended screening questions, or to refer a patient for specialist assessment where potential indicators of BDD are identified, could become relevant when assessing whether the appropriate standard of care has been met.

The proposed guidance may also add another dimension to claims concerning informed consent. Rather than focusing solely on whether the conventional risks, benefits and potential outcomes of a procedure were adequately explained, questions may arise as to whether it was appropriate to proceed with treatment at all. In a clinical setting, claimants may seek to argue that information suggesting the presence of BDD was material to the decision-making process. The scope of a consent dispute could therefore extend to whether appropriate screening and, where indicated, referral should have taken place before treatment was undertaken. The proposals also raise a broader and potentially difficult issue. Should an aesthetic practitioner have access to a patient's relevant medical history when considering possible OCD or BDD? If records are available, to what extent can a practitioner without medical training reasonably be expected to interpret that information and identify concerns requiring referral? These are issues likely to generate considerable debate as the regulatory landscape continues to evolve

NICE's recommendations remain in draft form, and our team will continue to monitor developments closely. However, they provide a clear indication of the direction of travel, namely a greater emphasis on screening, documentation and appropriate referral where concerns arise regarding a patient's psychological relationship with their appearance. Practitioners and insurers alike may therefore wish to review existing consultation and consent processes in anticipation of further regulatory developments.

As the regulatory landscape develops, Clyde & Co's legal experts will continue to provide updates and support to practitioners and insurers navigating these changes. Please do get in touch with our healthcare team should you have any queries. 

Clyde & Co's healthcare group is recognised for its extensive industry knowledge, offering a range of legal services covering public and private sectors as well as inquests, advocacy, professional regulation, product liability and pharmaceuticals/life sciences. Should we be able to assist you, please do contact one of our experts.

¹ https://www.saveface.co.uk/en/blog/post/the-times-complaints-about-non-surgical-cosmetic-treatments-continue-to-rise1
² https://www.nmc.org.uk/news/news-and-updates/nmc-to-update-position-on-remote-prescribing-of-non-surgical-cosmetic-medicines/
³ https://www.nice.org.uk/news/articles/draft-guidance-aims-to-improve-identification-of-ocd-and-body-dysmorphic-disorder