Stories of adverse outcomes for patients in the cosmetic surgery industry are well documented. In October 2021, ABC’s Four Corners aired an investigation into the practices of various cosmetic surgeons entitled 'cosmetic cowboys'. Just last month, the Victorian Civil and Administrative Tribunal remarked that the evidence in a regulatory matter against one of the surgeons named in the program was 'harrowing and shocking and when considered collectively, appears (on its face) to be conduct that is grossly inconsistent with the standards expected of any medical practitioner'.1
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 31 No 5 & 6.
The context
The Four Corners’ exposure into a discrete number of practitioners prompted a larger investigation into the practices of the industry. Four weeks after this program aired, the Australian Health Practitioner Regulation Agency (AHPRA) announced it would conduct an external inquiry into the cosmetic surgery industry. In August 2022, AHPRA published the review and proposed a raft of changes.2
In response, the Queensland Government has proposed a bill to amend the Health Practitioner Regulation National Law 2009 (Qld) (National Law) and AHPRA has enacted new guidelines into force from 1 July 2023 under the National Law.3 As Queensland is the host jurisdiction for the National Laws, these changes are likely to soon permeate across Australia.
Protecting the title of 'surgeon'
Under the National Law, any registered medical practitioner can currently call themselves a 'surgeon', even if they have not registered in a surgical specialty, nor completed any significant postgraduate surgical training.4 As a result, consumers must make sense of various qualifications and titles to identify a qualified and competent practitioner.5 The Department of Health in Victoria observed a gap between the cosmetic industry’s use of the title and what consumers understood it to mean.6
Under the Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023 (Qld) (the Bill), only those with specialist surgical training would be able to call themselves a 'surgeon'. The Bill makes it an offence for someone to knowingly or recklessly call themselves a surgeon, use descriptive terms which would indicate they are part of a surgical class or hold themselves out as being part of a surgical class. The new offences carry a maximum penalty of $60,000 or 3 years’ imprisonment for an individual, or $120,000 for a body corporate.
The title can only be used by those with Australian Medical College specialist surgical medical training (or equivalent recognised overseas qualification) in either surgery, obstetrics and gynaecology or ophthalmology. Additional classes may be added in the future by Medical Board input.7
As stated in the Explanatory Memorandum to the Bill, protecting the title of a surgeon allows members of the public to be confident that a practitioner is appropriately competent and qualified to practice. AHPRA states that members of the public will be able to use its practitioner search tool to look up a practitioner’s qualifications. It is working towards an endorsement model where the search tool will show practitioners’ specialist accreditations.8
Guidelines
Under s 39 of the National Law, the Medical Board may develop guidelines to provide guidance to health practitioners. Under s 41, an approved guideline by the Medical Board is admissible in proceedings against a practitioner as evidence of what constitutes appropriate professional conduct. These guidelines set and maintain the standards of professional practice.
AHPRA has rewritten existing guidelines on the performance of cosmetic medical and surgical procedures which commenced on 1 July 2023.9 The new Guidelines differentiate between surgical cosmetic procedures and non-surgical cosmetic procedures. Surgical procedures involve cutting beneath the skin, such as breast augmentation, surgical face lifts, liposuction and rhinoplasty.10 Non-surgical cosmetic procedures do not involve cutting beneath the skin but may involve piercing the skin, such as laser hair removal, non-surgical cosmetic varicose vein treatment, mole removal procedures and hair transplants.11
Gender affirmation surgery and procedures which have a medical justification and may lead to an improvement in appearance, such as correcting/improving structures damaged at birth, by injury or disease, are excluded from the definitions.12 AHPRA has elevated a number of guidelines from being recommended to being mandatory and added further guidelines. These changes are summarised and explored below.
General Practitioner referrals
All patients seeking surgical cosmetic procedures must now have a referral from a general practitioner. AHPRA notes the rationale is for the patient to have a conversation about their motivations with a medical practitioner with the best knowledge of the patient’s medical history who may also share this with the cosmetic surgeon.13
Motivational determination
A cosmetic surgeon must have a discussion with the patient about the internal and external motivations behind having a cosmetic procedure. The surgeon must also assess the patient for underlying psychological conditions including Body Dysmorphic Disorder (BDD). If the surgeon identifies such a condition, they must refer the patient for evaluation by another suitable independent medical practitioner. If the surgeon ultimately believes the surgery is not in the best interests of the patient, they must decline to perform the surgery.14 These guidelines were largely already in existence as recommendations, however, adherence is now mandatory.
The reference to motivational analysis stems from social psychology research into the connections between mental health and cosmetic surgery. For example, a study showed that patients seeking cosmetic surgery had a higher incidence of pre-existing mood disorders.15 Another study found 7–15% of patients seeking cosmetic surgery had BDD.16 A further study found that those who engage in cosmetic surgery to treat their BDD often exhibit higher psychopathology and lower self-esteem after surgery.17
Consent and consultation
The new Guidelines require prospective patients to take greater time to evaluate their decision to undergo cosmetic surgery. Surgeons must have at least two pre-operative consultations with the patient (at least one being in person). Patients will have a 7 day 'cooling-off' period after completing the mandatory consultations and providing consent for the procedure before they can pay a deposit or book the surgery.18 The previous guidelines only prescribed that there should be a 7-day cooling-off period after consent is provided. There were no requirements about the number of consultations.19
The Guideline is ultimately aimed at facilitating informed consent. For example, in Health Care Complaints Commission v Dr Tat Kong Joseph Tiong,20 the procedure occurred only 30 minutes to 1 hour after the first face-to-face consultation. The limited cooling-off period was a relevant factor in determining that the patient did not provide fully informed consent and she proceeded to operative treatment without full knowledge of the risks.
For patients under the age of 18, the Guidelines continue to recommend that practitioners should have regard to the views of parents or guardians. The new Guidelines require that all children must be assessed by a suitable independent practitioner, instead of merely recommending same. They also recommend that injectables, such as dermal fillers and botulinum toxin are not used. They also establish a longer cooling-off period of 3 months for all surgeries, instead of requiring it for major procedures only.21
Other updates
Additional changes to the guidelines for cosmetic surgery are summarised below. Under these new Guidelines, practitioners must:
- Provide patients with enough information to guide their decision. Practitioners must also provide further information about their experience and the total and possible costs of the procedure.22
- Have formal arrangements for post-operative care if they are not available, and have protocols in place for managing post-operative complications. This includes remaining around the facility for 24-hours if it is a fly-in-fly-out procedure. It is also recommended that the practitioner have admitting rights to an appropriate hospital when performing cosmetic surgical procedures and for collaborative care arrangements to be considered pre-operatively.23
- Provide patients with information about complaints mechanisms available to them. If the patient signs a non-disclosure agreement, a practitioner must emphasise that it does not abrogate any rights of complaint to disciplinary bodies.24
- Only perform cosmetic procedures if they have the requisite knowledge, training and experience to perform the procedure and treat any complications. AHPRA is aiming to introduce endorsements for cosmetic surgery and it expects practitioners to possess the requisite training when this is available. Practitioners must also complete continuing professional development training relevant to their scope of practice.25
- Inform the patient of their registration type and any specialist accreditations. They must not use a protected title unless they hold the relevant registration type.26
- Comply with all laws relating to the use of medical facilities. They must complete the surgery in a facility accredited by an Australian Commission on Safety and Quality in Health Care (ACSQHC) approved agency to ACSQHC standards. The facility must be appropriate for the level of risk involved in the surgery.27
- Not provide financial inducements to agents, offer discounts to promote their services, promote financing schemes to patients to pay for surgery, encourage patients to take on a debt to pay for surgery (for surgical procedures only), offer additional items such as free flights as incentives (for surgical procedures only) or have financial conflicts of interest.28
New Guidelines for advertising and marketing
AHPRA have also developed new guidelines to overhaul the advertising of cosmetic surgeons’ services which similarly came into effect on 1 July 2023 (the Advertising Guidelines).29 AHPRA’s 2022 report found that information which was crucial in enabling consumers to make informed decisions about procedures was being hidden in, and warped by, misleading advertising. It noted that advertising poses a unique risk in cosmetic surgery that is not present in other areas, as its primary intention is to sell and not to educate.30
Social psychology studies similarly evidence the risks of advertising in cosmetic surgery. A 2021 study found that viewing images of people with cosmetic enhancements affected people’s desires for cosmetic surgery.31 However, cosmetic outcomes are generally poorer when the underlying motivation is to look like a model in advertisements for cosmetic procedures.32
In addition to patient attitudes, advertising restrictions may curtail practitioner practices consistent with marketing but inconsistent with good practice. One of the doctors which featured in the Four Corners 'cosmetic cowboys' segment, Dr Aronov, had a significant social media presence. He had 13 million TikTok followers and 500,000 Instagram followers. A Tribunal remarked that he focused too much on producing marketing material during surgeries rather than attending to the patient, footage of surgeries was often uploaded without patients’ consent and patients complained he treated them disrespectfully in the footage. The Tribunal remarked that he 'appeared to have been seduced by the fiction of celebrity that social media can provide'.33
The new Advertising Guidelines continue the prohibition on advertising that is misleading or deceptive, offers discounts, uses testimonials, creates unreasonable expectations or encourages indiscriminate use.34 The new Advertising Guidelines adds requirements that advertising must:
- contain clear information about the practitioners’ registration type, the risks of the procedure and the associated recovery time,35
- be identified as adult content on social media so children under the age of 18 are not exposed to the advertising,36
- ensure any social media 'influencers' marketing cosmetic surgery comply with the guidelines37
- follow strict criteria to ensure any before and after photo comparisons are accurate,38
- obtain a patient’s consent before images of their body are to be used,39 and
- set realistic expectations of outcomes.40
The Advertising Guidelines also note that advertising must not:
- use sexualised images or gratuitous nudity,41
- use language that negatively describes bodies42
- describe the surgeon’s abilities with terms such as 'magic hands' or 'world’s best' etc,43
- use testimonials as they tend to create unrealistic expectations of beneficial treatment,44 and
- generally, be misleading.45
Conclusion
In Medical Practitioner’s Board of Victoria v Lal,46 the Victorian Supreme Court commented that the reputation of the medical profession is not 'turned on and off like a switch, rather, public confidence, is won — or lost — gradually'. It is not an overnight procedure which affects the appearance of an industry, but rather long-term changes to the regulatory landscape upon which it is built.
The new requirements governing cosmetic surgery will mandate a greater level of training and education for cosmetic surgeons and place more onerous obligations on most facets of their business. Only a before-and-after comparison of the industry after the enactment of these requirements will tell if the industry’s facelift has achieved its intended result.
1 Aronov v Medical Board of Australia (Review and Regulation) [2023] VCAT 631; BC202306521.
2 AHPRA, Independent review of the regulation of medical practitioners who perform cosmetic surgery: Final Report, August 2022; online at www.ahpra.gov.au/resources/cos....
3 Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023 (Qld); AHPRA, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures, effective 1 July 2023.
4 Explanatory Memorandum, Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023 (Qld).
5 Independent Review, p 5, available at: www.ahpra.gov.au/Resources/Cos...
6 Department of Health Victoria, Medical practitioners’ use of the title 'surgeon' under the Health Practitioner Regulation National Law, December 2022.
7 Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023 (Qld) s 4(4)–(5).
8 AHPRA, Thinking about having cosmetic surgery? (updated 19 April 2023), accessed at www.ahpra.gov.au/Resources/Cos....
9 AHPRA, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures, effective 1 July 2023.
10 Above n 9.
11 Above n 9.
12 Above n 9.
13 AHPRA, Patients better protected under new cosmetic surgery reforms, News Story dated 3 April 2023, accessed at www.ahpra.gov.au/News/2023-04-....
14 AHPRA, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures, effective 1 July 2023, 'cosmetic surgery' at [2], 'non-surgical cosmetic procedures' at [2].
15 H Jones et al 'The Psychological Impact of Aesthetic Surgery: A Mini-Review' (2022) 4 Aesthetic Surgery Journal Open Forum, ojac077; https://doi.org/10.1093/asjof/....
16 C E Crerand, M E Franklin, & D B Sarwer 'Body dysmorphic disorder and cosmetic surgery' (2006) 118(7) Plastic and Reconstructive Surgery 167–80; https://doi.org/10.1097/01.prs....
17 S Mulkens et al 'Psychopathology symptoms in a sample of female cosmetic surgery patients' (2012) 65(3) Journal of Plastic, Reconstructive & Aesthetic Surgery 321–327.
18 AHPRA, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures, effective 1 July 2023, 'cosmetic surgery' at [3].
19 Medical Board of Australia, Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures, effective 1 October 2016.
20 [2012] NSWMT 6.
21 AHPRA, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures, effective 1 July 2023, 'cosmetic surgery' at [4], 'non-surgical cosmetic procedures' pg 9 at [4]; Medical Board of Australia, Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures, effective 1 October 2016.
22 AHPRA, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures, effective 1 July 2023, 'cosmetic surgery' at [5], 'non-surgical cosmetic procedures' at [5]. Accessed online at www.medicalboard.gov.au/codes-....
23 Above n 22, 'cosmetic surgery' at [6], 'non-surgical cosmetic procedures' at [7].
24 Above n 22, 'cosmetic surgery' at [8], 'non-surgical cosmetic procedures' at [9].
25 Above n 22, 'cosmetic surgery' at [9], 'non-surgical cosmetic procedures' at [10].
26 Above n 22, 'cosmetic surgery' at [10], 'non-surgical cosmetic procedures' at [11].
27 Above n 22, 'cosmetic surgery' at [12], 'non-surgical cosmetic procedures' at [13].
28 Above n 22, 'cosmetic surgery' at [13], 'non-surgical cosmetic procedures' at [14].
29 AHPRA, Guidelines for registered medical practitioners who advertise cosmetic surgery (effective 1 July 2023) accessed online at www.medicalboard.gov.au/Codes-...#.
30 AHPRA, Independent review of the regulation of medical practitioners who perform cosmetic surgery: Final Report, published August 2022.
31 C E Walker et al Effects of social media use on desire for cosmetic surgery among young women (2021) 40 Current Psychology 3355–3364; https://doi.org/10.1007/s12144....
32 H Lee et al Body satisfaction and attitude theory: Linkages with normative compliance and behaviors undertaken to change the body (2009) 37(4) Family and Consumer Sciences Research Journal 466–88; https://doi.org/10.1177/107772....
33 Aronov v Medical Board of Australia (Review and Regulation) [2023] VCAT 631; BC202306521 at [88].
34 AHPRA, Guidelines for advertising a regulated health service, published December 2020, p 4, accessed online at www.ahpra.gov.au/Resources/Adv....
35 AHPRA, Guidelines for registered medical practitioners who advertise cosmetic surgery 1 July 2023 at [2], accessed online at www.medicalboard.gov.au/Codes-...#.
36 Above n 35, at [10].
37 Above n 35, at [5].
38 Above n 35, at [6].
39 Above n 35, at [6.10].
40 Above n 35, at [9].
41 Above n 35, at [6.9].
42 Above n 35, at [8].
43 Above n 35, at [2.6].
44 Above n 35, at [4].
45 Above n 35, at p 5; AHPRA, Guidelines for advertising a regulated health service, published December 2020.
46 Medical Practitioners Board of Victoria v Sabi Lal (2009) 23 VR 702; [2009] VSCA 109; BC200904190 at [59].
