A ‘Wellbeing’ Paradigm: A Concept-Based Study of Body Art and Regulatory Challenges
2. The Evolving Concept of Health
2.1. The Biomedical Model of Health
2.2. The Social Model of Health
2.3. Healthism and the Preventive Health Agenda
2.4. Wellbeing—A Key Determinant of Good Health
3. Medicalisation, Patient Expectations and the Decision-Making Space
4. Autonomy, Paternalism, and Broadening Perspectives of Health
5. Case study—Body Art, Tattooing, and Body Piercing
5.1. Body Art—The Reinforcement of ‘Self’?
5.2. Types of Body Art and Body Modification
5.3. Body Art—The Risks
6. Regulating Body Art
R v BM—A Missed Opportunity?
Conflicts of Interest
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 EWCA Crim 560.
 AC 789 (HL) per Lord Keith.
Constitution of the World Health Organisation, 22nd July 1946.
I. Kennedy, The Unmasking of Medicine (Manchester: Granada Publishing, 1981) p. 3.
Montgomery v Lanarkshire Health Board  UKSC 11.
See, the Equality Act 2010.
Illich, op. cit., n 58. 1977.
Glover–Thomas and Fanning, op. cit., n 18, p 28.
 UKSC 11.
In Chester v Afshar  1 AC 134, Lord Steyn declared that: ‘In modern law medical paternalism no longer rules and a patient has prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery’, 16.
Airedale NHS Trust v Bland  AC 789, 864 per Lord Goff of Chieveley.
In R(Nicklinson) v MoJ  UKSC 38, Lord Sumption grounds autonomy in the ‘moral instinct’ that ‘individuals are entitled to be the masters of their own fate’, 208.
 UKSC 11.
Glass v UK (2004) EHRR 341 and Tysiac v Poland (2007) 45 EHRR 947.
 EWCA Crim 560.
Burrell v Harmer  Crim LR 169.
R v Wilson  Crim LR 573.
R v Richardson  2 Cr App R 200.
R v Barnes  EWCA Crim 3246.
(1994) 1 AC 212.
Actual bodily harm means any injury which is designed to interfere with the health and/or comfort of the victim but must be of a transient or trifling nature (R v Miller  2 QB 282 at 292). A wound is caused when the skin, dermis and epidermis, is broken including the inner skin within the cheek, lip or urethra (R v Smith (1837) 8 C and P 173 and R v Waltham (1849) 3 Cox 442). Section 20 of the 1861 Act covers both wounding and also the infliction of grievous bodily harm (DPP v Smith  AC 290; R v Cunningham  AC 566).
The decision was largely based on the dicta of Lord Lane CJ in Attorney General’s Reference (No. 6 of 1980)  QB 715 that it is not in the public interest to permit people to cause each other actual bodily harm for no good reason. See also, Laskey v United Kingdom (1997) 24 EHRR 39.
The issue of consent in the course of sadomasochistic sexual activity was later considered in R v Stein  VSCA 300 in which a participant died as a result of being gagged. The court held that, even if the victim had consented to a being restrained and gagged, his consent was invalid because there was no way for him to communicate his withdrawal once the gag was in his mouth.
R v Wilson (1996) 2 Cr App Rep 241.
(1996) 2 Cr App Rep 241.
R v Wilson (1996) 2 Cr App Rep 241, per Russell L.J., 244.
 All ER (D) 641 (CA).
R v Emmett, R v Emmett,  All ER (D) 641 (CA), p. 8.
R v Emmett, op. cit., 8.
For example, ORLAN (Mireille Suzanne Francette Porte) is a French contemporary artist who has acquired fame through her work with cosmetic surgery in the early to mid-1990s.
A sense of self is related to our perception of ourselves and an awareness of who we are. For a detailed discussion, see, (Vartanian 2009).
General Medical Council Guidance on cosmetic interventions http://www.gmc-uk.org/guidance/ ethical guidance/28687.asp. See also, See the Royal College of Surgeons webpages: http://www.rcseng.ac.uk/surgeons/surgical-standards/-practices/csic/main-areas-of-work.
R v Brown, op. cit. n 80, p 227. Surgeries that are designed to modify the body for non-therapeutic, but religious purposes may well be supported by Article 9 of the ECHR, which guarantees respect for religious freedom. However, some argue that non-therapeutic circumcision of male infants and young boys violates the child’s right to bodily integrity under Article 8 of the Convention. See (Fortin 2009).
While cosmetic surgery offers an important route through which some may seek to enhance their wellbeing, this facet of body modification is outside the scope of this paper. This important issue has been considered elsewhere, see, for example: (Widdows and MacCallum 2018).
Tattooists must be registered under the Local Government (Miscellaneous Provisions) Act 1982, Part VIII, but there is no registration scheme in place for body modification and no training or qualifications system is in place for either.
Farrell, A. M., S. Devaney, T. Hervey, and T. Murphy. 2013. Regulatory ‘desirables’ for new health technologies. Medical Law Review 21: 1–10, at p. 2.
Tattooing of Minors Act 1969, section 2.
When an offence is committed, the police will enforce the legislation with fines up to £1000.
This principle was established by Gillick v West Norfolk and Wisbech Area Health Authority  AC 112 where the House of Lords observed that the child’s voice should be listened to when they reach sufficient understanding to be capable of making up their own mind.
Though the legal requirements for body piercing are very limited in England and Wales, it is a matter of good practice to ensure the client signs a declaration of age and a consent form prior to any work being commenced. Consent will only be valid if full information regarding the nature of the process and potential problems involved is disclosed. Informally, for those under the age of 16, adults with parental responsibility are required to sign the consent form. While not a formal indemnity device, the practitioner relies upon it as the primary means of protection.
Under section 120 of the Local Government Act 2003 cosmetic piercing and semi-permanent skin-colouring businesses have been added to the existing powers under the Local Government (Miscellaneous) Provisions Act 1982 to regulate ear piercing, tattooing, acupuncture and electrolysis by requiring registration and observance of byelaws. Local authorities in London already had these powers under private legislation, the London Local Authorities Act 1991 and the Greater London Council (General Powers) Act 1981.
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, consequently piercing of nipples and genitalia (for girls) or genitalia (for boys) can be regarded as an assault. Evidence that such contact was for sexual gratification would be required in order to constitute an indecent assault. The Female Genital Mutilation Act 2003 states that certain procedures in respect of female genitals are illegal unless carried out for medical reasons.
The Tattoo and Piercing Industry Union is recognised as the only professional body for tattoo and body piercing practitioners in the UK.
Local Government (Miscellaneous Provisions) Act 1982, section 14(2), section 15(2), section 4(7) and section 15(7). This legislation does not apply when the procedures are carried out under the supervision of a medical practitioner—see sections 14(8) and 15(8).
The Local Government (Miscellaneous Provisions) Act 1982, as amended, is concerned with the minimisation of infection and controlling practitioner behaviour and premises hygiene to meet this objective. Local authorities are responsible for regulating and monitoring premises which carry out body art procedures through compulsory registration and licensing. Registration provides lawful authority to undertake the specified tasks and local authorities may also supplement the registration scheme with bye laws directed, in particular, at cleanliness and hygiene.
Local Government (Miscellaneous Provisions) Act 1982, as amended, section 16.
 EWCA Crim 560.
Compare R v Brown (1994) 1 AC 212 with R v Wilson (1996) 2 Cr App Rep 241.
R v BM, op. cit., n 1, p 13.
R v BM, op. cit., n 1, p 43.
R v BM, op. cit., n 1, p 40.
WHO, op. cit., n 23.
In the future, more extreme forms of body modification may be better scrutinised by requiring psychological assessment before it can be carried out, adopting a similar approach to transgender surgery, which requires a diagnosis of gender dysphoria by a psychologist and continued review and management by a gender-identity-development unit. Adopting this more rigorous approach would act as a more effective gatekeeper to ensure recipients are fully committed to the procedure and understand the risks.
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Glover-Thomas, N. A ‘Wellbeing’ Paradigm: A Concept-Based Study of Body Art and Regulatory Challenges. Laws 2020, 9, 22. https://doi.org/10.3390/laws9040022
Glover-Thomas N. A ‘Wellbeing’ Paradigm: A Concept-Based Study of Body Art and Regulatory Challenges. Laws. 2020; 9(4):22. https://doi.org/10.3390/laws9040022Chicago/Turabian Style
Glover-Thomas, Nicola. 2020. "A ‘Wellbeing’ Paradigm: A Concept-Based Study of Body Art and Regulatory Challenges" Laws 9, no. 4: 22. https://doi.org/10.3390/laws9040022