Despite the subjectivity of “beauty” and the fact that everyone is unique in their own ways, it is undeniable that most individuals may have desires to sustain a flawless and/or perfect appearance and to rescuplt the imperfections they perceived on their bodies including but not limited to performing nose surgery (rhinoplasty), massive fat removal (liposuction), lip and jawline augmentation as well as manicure and pedicure. The aforementioned desires had become a catalyst for the rising number of licensed and unlicensed beauty salons and aesthetic clinics in Malaysia. It has also resulted in the recent emergence of a medical modality known as aesthetic medical practice of which the goal is about creating a harmonious physical and psychological balance whereby this practice is on the rise globally and is also gaining popularity nationwide.[1] Be that as it may, everything comes with costs and risks that one may not be able to foresee and/or anticipate.
Competency of Beauticians and Aesthetic Medical Practitioners
According to Awg Armadajaya bin Awg Mahmud JC in the case of Teng Ngit Yoong v Liew Nyok Fen[2] (hereinafter referred to as ‘Teng Ngit Yoong’), a beauty salon or beauty parlor, or sometimes beauty shop, is an establishment dealing with cosmetic treatments for men and women. In Malaysia, there exists no body that regulates the beauty salon per se. As such, there is no yardstick to measure the standard expected of a “beauty therapist” or a “beautician”. Unless there exists a yardstick to gauge the standard expected of the beauty therapists or beauticians, the Court is unable to scrutinize the standard that make members of this occupation as professional.[3] The judge had further added that they are at best, people who offered their services for a fee but cannot in anyway be regarded as professional.
It was further intimated by the judge that the medical practitioners or pharmacists who venture into medical aesthetic on the other hand are competent, not by virtue of the existence of a regulatory body for these medical practitioners, but by their own professional bodies which determine their qualifications as medical doctors or pharmacists.[4] According to the Aesthetic Medical Practice Guidelines for General Practitioners 2013, it is a prerequisite for a medical practitioner who intends to practise aesthetic medical practice to, inter alia, be fully registered with the Medical Council and hold a valid practicing certificate under the Medical Act 1971.
As such, based on the above-mentioned legal perspective on the nature of occupation of beauticians or beauty therapists and aesthetic medical practitioners, it is apparent that there exists a higher degree of obligation imposed on the aesthetic medical practitioners as compared to the beauticians or beauty therapists given the differences with regard to the knowledge, skills and competency. Therefore, should there be any complications resulted from any treatment given by the beauticians or beauty therapists, one may initiate legal proceedings under the cause of action of negligence. However, in the event the erroneous treatment and/or advise is rendered by aesthetic medical practitioners, one may have a cause of action for medical negligence and/or alternatively, professional negligence given their special skills which an ordinary person does not possess.[5]
Legal Principles Governing Negligence Claim
Our tort of negligence followed closely the law of England and Wales considering that there exists no statutory regulation governing it in Malaysia. There are four requirements to be fulfilled by the Plaintiff in order to succeed in a negligence claim as set out in the case of Donoghue v Stevenson[6]. Firstly, a duty of care must be established whereby in a beauty industry context, one must prove that the beauticians or beauty therapists owe him a duty of care.
A duty of care is a legal obligation imposed on an individual which requires adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.[7] This is also known as “Neighbour Principle” according to Lord Atkin in Donoghue v Stevenson whereby Lord Atkin had intimated that one must take reasonable care to avoid acts or omissions which one can reasonably foresee would be likely to injure one’s neighbour.
It was further added that the neighbour can be interpreted as the persons who are so closely and directly affected by one’s act.[8] Therefore, given the proximity of relation between the beauticians or beauty therapists and their clients, it is apparent that it would give rise to a fiduciary relationship by the services rendered. Hence, the beauticians or beauty therapists indeed owe duty of care towards their clients. In the event they failed to protect the clients from any reasonably foreseeable injury and/or harm, that would give rise to a fulfillment of the second element of negligence i.e., the breach of duty of care.
The third element to be established is the causation and remoteness of damage whereby in consequence of the beauticians or beauty therapists’ breach of duty of care, the damage is sustained by the clients. In order to succeed in proving this element, the clients must be able to convince the Court that there exists a causal link between the failure of the beauticians or beauty therapists to take reasonable steps in protecting the clients from any reasonably foreseeable injuries and the injuries suffered by the clients. In fact, this element can be seen as a further significant control mechanism employed by the courts to limit the number of success claimants.[9]
The last element to be established in a negligence claim is the damage and/or injuries. For instance, in the case of Teng Ngit Yoong, the Appellant is a beauty therapist who rendered services to the Respondent to alleviate the complaints of freckles and pimples whereby the Respondent followed the advice and/or instructions of the Appellant accordingly.[10] As a consequence thereof, the Respondent suffered from severe skin problem which was attributed to chemical peeling. The Court held that notwithstanding that the Appellant is not a professional, the Appellant nevertheless owes a duty of care in every way that is required of matters affecting to human body to the Respondent.[11] In the event there is a breach of duty of care by the act and omission of the beauticians or beauty therapists but there is no injury suffered by the client, the claim shall fail considering that the fourth element is not fulfilled.
Legal Principles Governing Medical Negligence Claim
In Malaysia, Bolam test as formulated in the case of Bolam v Friern Hospital Management Committee (hereinafter referred to as ‘Bolam’) on the standard of care was applicable in medical negligence until the decision of the Federal Court in the case of Foo Fio Na v Dr Soo Fook Mun & Anor[12] (hereinafter referred to as ‘Foo Fio Na’). McNair J in Bolam’s case pronounced that a medical practitioner is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical opinion even though other doctors adopt a different practice.[13]
However, the Federal Court in the case of Foo Fio Na adopted the test sets out in the case of Rogers v Whitaker (1992) 175 CLR 479 and held that Bolam test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the material risk of the proposed treatment.[14] This decision had further created two inconsistent lines of decisions by our courts on the standard of care in medical negligence.[15]
This anomalous situation was put to rest by the Federal Court in Zulhasminar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 where it was held that the test in Rogers v Whitaker is restricted to only the duty to advise the risks associated with any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard of care for diagnosis or treatment, the Bolam test still applied.[16]
Based on the foregoing, in the event one suffered injuries after undergoing any aesthetic treatment (be it surgical and non-surgical) by a qualified aesthetic medical practitioner, the claim for medical negligence may stand if and only if the aesthetic medical practitioner fails to advise and/or disclose the potential and/or material risks beforehand and/or the treatment was not made in accordance to the practice accepted as proper by a responsible body of medical opinion. There exists a fairly higher threshold for the medical negligence claim considering the reputation, credibility and higher skills possessed by the medical practitioners.
Conclusion
The answer to the question as to whether the beauty salons and aesthetic clinics can be sued for erroneous treatment is affirmative, subject always to the fulfillment of the elements of negligence and/or medical negligence. Despite one’s rights to take action for negligence and/or medical negligence are protected under the law, one should be cognizant of getting aesthetic treatment from unlicensed practitioners and facilities including but not limited to unlicensed spas and beauty salons. According to the Medical Practice Division director, Dr Mohd Azman Yacob, the aesthetic treatment can potentially cause health complications, disabilities and even death if handled by unqualified individuals.[17] Last but not least, beauty should not be painful.
[1] Guidelines on Aesthetic Medical Practice for Registered Medical Practitioners 2013
[2] [2020] MLJU 862
[3] Ibid
[4] Ibid
[5] Ali Mohammad Matta. MEDICAL NEGLIGENCE: New Issues and their resolution [2000] 3 MLJ clxxxiv
[6] [1932] UKHL 100, [1932] AC 562
[7] Ibid
[8] Ibid
[9]Malaysia Construction Services.com. Negligence Tort Law. Retrieved from http://www.malaysiaconstructionservices.com/pepc-exam-general-paper/negligencetortlaw
[10] [2020] MLJU 862
[11] Ibid
[12] [2007] 1 MLJ 593
[13] [1957] 2 All ER 118
[13] Dr Premitha Damodaran v GTK (a child suing through her father and litigation representative, Taranjeet Singh a/l Bhagwan Singh) & Anor and another appeal [2022] 3 MLJ 484
[14] Ibid
[15] Ibid
[16] Dayak Daily (2022). MOH warns of deadly dangers of unlicensed cosmetic procedures offered in spas, beauty salons. Retrieved from https://dayakdaily.com/moh-warns-of-deadly-dangers-of-unlicensed-cosmetic-procedures-offered-in-spas-beauty-salons/
Authored by Nurin Husnina Hussein
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