Legislation

 

Legalities / Legislation

(Please look up your specific local authorities legislation)

Consent

Specific age issues; the law and practical guidelines

Enforcement of skin piercing activities falls to local authority (LA) enforcement officers under paragraph 8 of Schedule 1 of the Health and Safety (Enforcing Authority) Regulations 1998. 

The Civic Government (Scotland) Act 1982 – 2006 Order, recently passed by the Scottish Parliament provides that from 1 April 2006 a licence will be required to allow the carrying on of a business which involves:

Acupuncture, Cosmetic Skin Piercing and Electrolysis or Tattooing

 Operating without a licence will be an Offence, which on summary conviction, is punishable by a fine of up to level 4 on the standard scale (currently £2,500). The Order allows that, as a transitional arrangement, if existing operators make an application for a licence on or before 31 March 2006, they can continue to offer this service until a decision is made on their application.  If the application is not made before 31 March 2006 they would be acting unlawfully and this could affect their future status as a licence holder. There are certain nationally imposed conditions which will apply to each licensed premises and also national conditions which apply if no premises are involved.

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Licences under the Act (see paragraph 7) may stipulate specific conditions related to age in the London Boroughs where piercing and other special treatments are performed. In the absence of these there are some legal principles that may assist the enforcement officer to advise pierces in their area:

· Under the Sexual Offences Act (1956), Girls and boys under the age of 16 cannot legally give consent to intimate sexual contact under any circumstances, so piercing of nipples and genitalia (for girls) or genitalia (for boys) can be regarded as an assault offence. However, only proof that such contact was for sexual gratification would likely constitute an indecent assault. Indecent assault is a serious sexual offence that attracts a requirement to register with the police as a serious offender under the Sexual Offender Act 1997.

· Unless byelaws or local licensing prohibits, the law allows children under the age of 16 to consent to body piercing provided they are sufficiently mature to understand the nature of the request. This kind of assessment is clearly a subjective matter for the piercer involved. The client should be provided with sufficient information to allow them to proceed in an informed way and without pressure. Sometimes, the greatest pressure to get pierced may come from friends or relatives.

· If piercers are willing to treat minors, the visiting EHO should recommend the presence of a parent or guardian during any such procedure, and...........

· Where age permits, the law recognises that certain activities that give rise to 'Harm' are lawful. This includes surgery, tattooing, ear piercing and violent sports.

Assault - legal provisions dealing with violent behaviour or harassment

The criminal law contains a wide range of powers to deal with violent behaviour or harassment, but it is accepted that there are certain activities - e.g. contact sport - where injury may occur but where the participant accepts this risk. Although some skin piercing methods may result in lasting marks to the body, the practise of scarification is undertaken with the sole intention of causing permanent scarring and the informed client accepts this as an end point to the treatment. The way that this type of activity is treated in law would be much like any other, and any scarification activity would have to be viewed in the light of the existing offence definitions if a prosecution was under consideration. Current law describes assault and its penalties as the following:
· assault which attracts a maximum penalty of 6 months' imprisonment and / or a fine of £500;
· assault occasioning actual bodily harm (section 47 of the Offences Against the Persons Act, 1861) and malicious wounding (section 20 of the 1861 Act), with a maximum 5 years' imprisonment; and· wounding with intent to cause grievous bodily harm under section 18 of the 1861 Act, which attracts a maximum sentence of life imprisonment. Where an attack results in death, the offender may be charged with murder or manslaughter, where the maximum sentence is also life imprisonment

The Home Office interprets the law to mean that a person cannot give their consent to a serious assault. If such an assault were believed to have taken place, then it would be a police matter to take any prosecution forward. As there is no specific legislation attached to the practise of scarification or skin piercing, the law would develop on a case-by-case basis. A court would have to consider - on this basis - whether the action performed constituted an offence as described in the assault categories above. Courts have held in the past that body piercing for decoration is lawful. For any charges to be made under these circumstances it would be usual for the 'victim' to make a complaint to the police authorities. If a person has previously asked for piercing or scarification to be performed, it is unlikely that they would then wish to prosecute the person who had performed the act. Circumstances such as these would make any kind of prosecution difficult, even if permanent body modification resulted.

Anaesthetic

The subject of anaesthesia of the mucous membranes has been raised several times, and a product commonly used for this is Xylocaine. This product contains Lignocaine- a (P) classified drug. It can therefore legally be used, where appropriate, by the tattooist/body piercer. However, the use of Xylocaine spray for tongue piercing (or similar) is not appropriate because the spray form is not licensed for use on the tongue. In spray form, it may also present an inhalation risk or may be inadvertently sprayed in to the eyes. If Xylocaine is to be used at all for oral procedures then the 4% topical suspension is licensed by the manufacturer (Astra-Zeneca) to provide anaesthesia of oral mucous membranes. Its use in tongue piercing is therefore within the terms of its marketing authorisation according to the manufacturer themselves.

Another important issue with the legalities of anaesthetic use concerns the damage of tissue by some products used for local anaesthesia. Ethyl chloride spray - a pharmacy issue drug is used in dental surgery, chiropody, ear piercing and other minor surgical procedures. The product is volatile, highly flammable and subject to a COSHH assessment prior to its appropriate use. It must be carefully stored, monitored during storage and disposed of as special waste. Skin piercers should be made aware of the prolonged effects of ethyl chloride. It can cause a 'frost-bite' effect if left in contact with the skin for too long. It is recommended that practitioners of skin piercing treatments do not use ethyl chloride. It can damage the skin and greatly increase the chances of infection of the treated site.