I have previously set out the steps that plastic surgeons and gynaecologists would be well advised to take in terms of female patients’ consent to labiaplasties and similar operations. To recap, female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. It is also sometimes referred to as female genital cutting or female circumcision. FGM is illegal under the Female Genital Mutilation Act 2003. The 2003 Act states that a person is guilty of an offence if he “excises, infibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris”. Under the 2003 Act, the definition “girl” includes women, meaning the Act applies to all women.
New developments in the law introduced by the Serious Crime Act 2015
New legislation came into force on 31 October 2015 which places a mandatory obligation on regulated health and social care professionals and teachers in England and Wales to report “known” cases of FGM in under 18’s to the police.
“Known” cases are defined as those where either a girl informs the person that they have been subjected to an act of FGM or where the person observes physical signs appearing to show that an act of FGM has been carried out. Further, if there is any good reason to suspect that a child is at risk of FGM they must be referred using the standard existing safeguarding procedures.
The Serious Crime Act 2015 also introduced FGM Protection Orders, which came into force on 17 July 2015. An FGM Protection Order is a civil measure which can be applied for through a family court as a means of protecting actual or potential victims from FGM. Breach of an FGM Protection Order is a criminal offence carrying a sentence of up to five years in prison.
FGM Protection Orders are unique to each case and contain legally binding conditions, prohibitions and restrictions to protect the person at risk of FGM. These may include:
- Confiscating passports or travel documents of the girl at risk and/or family members or other named individuals to prevent girls from being taken abroad.
- Ordering that family members or other named individuals should not aid another person in any way to commit or attempt to commit an FGM offence, such as prohibiting bringing a “cutter” to the UK for the purpose of committing FGM.
First FGM case heard in the English courts
The first English court case concerning FGM since the 2003 Act took place in February 2015 at a time of growing political and media pressure on the police and the CPS at the failure to bring FGM to prosecution in the UK. Dr Dhanuson Dharmasena was charged with committing FGM by stitching up a mother following the birth of her first child at the Whittington hospital in London in November 2012. He said he had sutured her with a single stitch to stop her bleeding from an incision required for childbirth, because she had previously been subjected to FGM in her native Somalia.
Southwark crown court heard that the woman had undergone type 3 FGM – in which part of the labia are sewn together – as a child in Somalia, and during labour the doctor had made two cuts to her vaginal opening to assist in the safe delivery of her baby. After the birth, Dr Dharmasena had then used a figure of eight suture to stem bleeding from the incision. But the Crown tried to claim that he had intended to close the woman’s vaginal opening and had reinstituted her FGM, something that was not medically necessary and a criminal offence. The woman at the centre of the case did not support the prosecution.
The jury took less than 30 minutes to find Dr Dhanuson Dharmasena not guilty of subjecting the woman to FGM and the CPS have come under much criticism for ever bringing the case to court, with some labelling it as a legal and political “show trial” designed to boost the profile of the authorities’ campaign to defeat FGM.
While the jury found him not guilty, the effect on Dr Dharmasena’s career and personal life cannot be underestimated. He was suspended from the medical register while the case was ongoing and faced death threats after the public announcement of the prosecution. After the trial he faced a further investigation by the General Medical Council and possible disciplinary action.
Where does the law leave cosmetic surgeons where a patient requests FGCS?
The World Health Organisation definition of FGM deems female genital cosmetic surgery (FGCS) procedures akin to type 1 and type 2 FGM. Therefore, in practice, unless a cosmetic surgeon can prove that the surgery was “necessary” for the physical or mental health of the patient, they are still at risk of criminal prosecution under the 2003 Act. And it is not only the surgeons who are at risk here. Tattooists and piercing salons – probably unknown to them – are too. In turn this puts pressure on the police who, when taking female under 18 prisoners into custody, are obliged to report any tattoos or piercings in this “intimate” area as potential evidence of being a victim of FGM.
The Association of Chief Police Officers have identified that at present there is a perceived “double standard” whereby black and ethnic communities are being condemned for following cultural custom while in the wider community the “designer vagina” private medical industry is flourishing. Likewise, despite also being in breach of the Act, female genital piercing continues to take place in under 18s all over the country with very little likelihood of cases ever being brought to the attention of the police.
The Government has stated that they do not believe that the legislation itself creates double standards and they therefore have no plans to amend the Act. What is clear, however, is that a grey area exists which will no doubt attract a test case.
There is currently no guidance available to cosmetic surgeons on what the courts would deem “necessary” for a person’s physical or mental health. Cosmetic surgeons are therefore putting their reputation and careers at stake by agreeing to perform labiaplasty procedures, irrespective of the fact that they have obtained the full consent of the patient. Indeed, plastic and cosmetic surgeons are finding that their practice is fraught with difficulty while they grapple with the reality of the situation that technically they are in breach of the Act, but the medical profession has done next to nothing to protect them in this regard or flag the issue and meanwhile female patients continue to clamour for surgery for all kinds of reasons.
Suggestions for change
We consider that the Department of Health have a duty to issue guidance notes on this legislation before a cosmetic surgeon becomes the subject of a test case in the courts. We propose that the DoH consider making the following amendments to the current legislation:
- The publication of further guidance from the Department of Health on what is deemed as “necessary” for a person’s physical or mental health.
- A requirement that every patient seeking labiaplasty is referred to a psychologist for a mental health assessment. Ideally, a list of approved psychologists should be drawn up to avoid discrepancies in the quality of assessments carried out.
- A requirement that a second opinion is sought from another doctor before a decision is made to perform labiaplasty on a patient. Ideally, this would be the patient’s GP who knows the patient best.
What about now?
In the meantime, cosmetic surgeons are advised to tread carefully. The Royal College of Gynaecologists and Obstetricians advise that FGCS should not normally be carried out on females under the age of 18, irrespective of consent because full genital development is not normally achieved before 18.
They also recommend that any woman requesting labiaplasty should also be given accurate information about the normal variations in female genitalia and be offered counselling and other psychological treatments such as body image distress counselling before surgery is offered as a last resort.
Where surgery is the only option, surgeons are advised to keep a written record of the physical and mental health reasons which, in their view, necessitate any FGCS procedure they carry out.