IS LEGAL ACTION POSSIBLE?

If the Scottish Government proceeds with the current categorization of aesthetic procedures, particularly in terms of clinical oversight, non-medics in the aesthetic field may feel unfairly disadvantaged by the regulations, especially if they restrict access to certain treatments or require qualifications that are out of reach for non-medical professionals. There are several potential actions non-medics could take to challenge or address this situation:

Non-medics may have the option to pursue a judicial review if the Scottish Government’s decisions appear to be unlawful, unreasonable, or disproportionate. Judicial review is a legal process through which courts examine the lawfulness of a decision or action taken by a public body, such as the Scottish Government.

• Grounds for Judicial Review: Non-medics could argue that the proposed categorization is: 
  • Unlawful: If the categorization is based on flawed or unreasonable reasoning.
  • Discriminatory: If it disproportionately disadvantages non-medics without just cause, potentially violating equal rights legislation.
  • Procedurally unfair: If the consultation process or decision-making fails to include relevant stakeholders, or if the government did not take into account the full scope of evidence provided by industry professionals.
• Next Steps: To begin a judicial review, it would be necessary to obtain legal advice from a solicitor experienced in public law or administrative law. They would assess whether the decision can be legally challenged and advise on the process.

A judicial review in Scotland is a process where the courts examine the legality of decisions made by public bodies or authorities, such as the Scottish Government or a regulatory body. Judicial review does not assess the merits or the fairness of a decision, but rather whether the decision was made in a lawful and proper manner, according to the law. If a decision is found to be unlawful, unreasonable, or procedurally flawed, the court may order it to be reconsidered or revised.

Here's a more detailed look at the process of a judicial review in Scotland:

Judicial review can be sought if a decision by a public body is deemed to be unlawful on one of the following grounds:

• Illegality: This occurs when the public body acts outside of its powers or fails to follow the law. For example, if the Scottish Government's categorization of aesthetic procedures oversteps its legislative authority or fails to meet the necessary legal standards, a judicial review could argue that the decision is unlawful.
   
• Irrationality (Unreasonableness): If the decision made by the public body is so unreasonable that no reasonable decision-maker would have made it, it could be challenged. This could apply if the categorization of certain aesthetic procedures (e.g., mesotherapy or PRP) is perceived as arbitrary and lacks evidence-based reasoning or justification.
   
• Procedural unfairness: This occurs when the public body fails to follow the correct procedures or does not provide sufficient opportunity for stakeholders to have their voices heard. For instance, if the Scottish Government fails to adequately consult with the aesthetics community or does not consider all relevant evidence before making the decision, a claim of procedural unfairness could be made.
   
• Proportionality: This ground is based on the idea that any regulatory actions taken should be proportionate to the goals they are trying to achieve. If the regulations are deemed to be overly restrictive or disproportionate, judicial review could argue that they unjustly restrict the rights or practices of non-medics in the aesthetics industry.
   

• Pre-Application Stage: Before applying for judicial review, you must first consider the pre-action protocol. This includes trying to resolve the issue directly with the public body by writing a formal letter asking for clarification or reconsideration of the decision. This is often done through a pre-action letter that sets out why you believe the decision is unlawful and requesting the public body to reconsider or reverse it.
   
• Application for Permission (Leave to Apply): In Scotland, you must first seek permission from the court to bring a judicial review. You need to demonstrate that you have an arguable case and that you have a legitimate interest in the issue. This is usually done by submitting an application, which includes:
   
  • A written statement of the grounds for the judicial review.
  • Details of the decision you are challenging.
  • Evidence supporting your claim (e.g., official documents, consultations, or reports).
  • The court will review whether there is a reasonable basis for the judicial review to proceed.
     
• Court Hearing: If permission is granted, the case proceeds to a full court hearing. Both parties (the applicants and the public body) will present their arguments to the judge. The court will evaluate whether the decision was lawful, fair, and made in line with relevant legal principles. This is not a trial of the facts but an examination of the legality of the decision.
   
• Outcome: If the court finds that the decision was unlawful, it has several options for the outcome:
   
  • Quashing the decision: The court can declare the decision to be void and order it to be reconsidered.
  • Ordering the public body to take a different course of action: The court can instruct the public body to follow proper procedures or reconsider the decision.
  • Refusing the application: If the court finds that the decision was lawful, it will dismiss the judicial review.

There are strict time limits for initiating a judicial review. In Scotland, you must apply for judicial review within three months of the date when the decision was made, or within reasonable time if there are exceptional circumstances that explain the delay. This means that if the Scottish Government proceeds with the proposed aesthetic regulations, you must act quickly to ensure that the judicial review process is initiated within the allowed timeframe.

Judicial reviews can be costly, and you should be prepared for the financial commitment. The costs include:

• Legal fees: Solicitors and advocates specializing in public law or administrative law can assist in preparing and presenting the case. It’s important to choose solicitors experienced in judicial review cases.
• Court fees: There are also fees associated with submitting applications and attending hearings.

Some legal support or funding options may be available, such as:

• Legal aid: Depending on the circumstances and the applicant's financial status, legal aid may be available to cover some of the legal costs.
• Crowdfunding or industry backing: If a group of non-medics feels strongly about challenging the regulations, they could raise funds collectively to cover the costs of legal action.

If the judicial review is successful, the outcome could involve:

• Reconsideration or modification of regulations: The Scottish Government could be ordered to reconsider the categorization of aesthetic procedures or amend the regulations based on the court’s findings.
• Clarification of the law: The case may lead to clearer guidance or reform in the way aesthetic procedures are regulated, potentially allowing non-medics to perform certain treatments without unfair restrictions.

If the judicial review fails, the public body’s decision stands, but applicants may still be able to seek changes through other channels, such as lobbying or public campaigns.

A judicial review in Scotland offers non-medics in the aesthetics industry a legal pathway to challenge potentially restrictive or unfair government regulations. However, the process requires careful planning, adherence to legal procedures, and the involvement of experienced legal professionals. A judicial review can be a powerful tool to ensure that regulations are made lawfully and fairly, but it should be considered alongside other strategies, such as advocacy, lobbying, and public campaigns. If successful, a judicial review can help secure a more balanced regulatory framework for the aesthetics industry.