‘Surgeon’ to be protected title in Australian national law

Summoned to Canberra to explain what actions AHPRA has taken to ensure patient safety is a priority for cosmetic procedures – amid what one senator declared was alarm at ‘a lot of stories about disastrous outcomes’ – CEO Martin Fletcher formally confirmed health ministers collectively have agreed to protect the title ‘Surgeon’ in the national law.

However, some senators expressed significant apprehension that AHPRA’s plans were ‘tricky on the words’ and Australians would be very concerned at the lack of clarity that ‘cosmetic cowboys would be off the market.’

Following months of negative headlines surrounding cosmetic surgery procedures, representatives from the Australian Health Practitioner Regulation Agency (AHPRA) were called to give formal evidence before November’s Federal Parliamentary Senate estimates hearings in Canberra.

It was a landmark arrival: AHPRA executives had not previously appeared before a Senate estimates hearing – and this unique ‘grilling’ only occurred following approval for them to appear and formally answer questions in public being granted collectively by the Health Ministers Council (state, territory and federal health ministers) on, what Chief Executive Martin Fletcher emphasised was, ‘a one-off basis to aid transparency’.

Fletcher stressed that rarity by adding: ‘If there was a future invitation for us to appear before a Senate estimates committee, we would I think need to go through a process again of confirming that health ministers were comfortable with us doing that.’

However, foreshadowing future tension over the controversial issue, Liberal Senator Anne Ruston immediately retorted: ‘I put on the record that I will be requesting AHPRA attend future estimate hearings, particularly as I would like to
find out what’s happening… I’d like you back here in February to answer questions about… how we’ve gone in changing the national law in relation to the use of the term ‘surgeon’.’

It was one of many terse exchanges between Senators and AHPRA representatives during the important hearing.

16 actions to ‘ensure patient safety’

Setting the framework for AHPRA’s appearance, ALP Senator Anne Urquhart began the day bluntly: ‘Can you tell me what actions AHPRA has taken to ensure patient safety is a priority for cosmetic procedures? We’ve all seen a lot of stories about disastrous outcomes. Can you tell me what actions you’ve taken to ensure the safety of patients?’

AHPRA CEO Martin Fletcher answered: ‘Like you, we were deeply concerned about a number of media reports some 12 months ago in relation to patients being harmed by cosmetic surgery.

‘In the wake of that media reporting we commissioned an independent review led by Mr Andrew Brown, the former Health Ombudsman from Queensland. That review reported and was published in full on 1 September this year.

‘It made 16 recommendations to both AHPRA and the Medical Board of Australia for actions we should take to address these patient safety issues in the cosmetic surgery industry.

‘We’ve accepted all of those recommendations, and we’re also very pleased to get strong support from health ministers across Australia for that response as well.’

Cosmetic surgery ‘enforcement unit’

Senator Urquhart asked for a specific ‘timeline’ for ‘implementation of those recommendations’, to which Fletcher replied that a ‘cosmetic surgery enforcement unit’ has been established within AHPRA which is ‘now spearheading all of our work in relation to the response to the recommendations.

‘For example, we’ve established a cosmetic surgery hotline and are doing a lot of promotion with the community to make sure people are telling us about their bad experiences. One of the features of the industry is that bad things were happening and they weren’t necessarily being raised with us.

‘There is work under way on strengthening the guidelines around things like advertising, the expectations of medical practitioners, and they’ll be going to public consultation this month, with the expectation they’ll be finalised early next year.

‘We’ve written to every doctor already in Australia – 133,000 medical practitioners – reminding them of their obligations in relation to reporting any unsafe care that they see, so we can look at whether we need to take action.’

‘Area of practice’ endorsement

Fletcher also explained work was under way through the Medical Board of Australia and Australian Medical Council to develop an ‘area of practice’ endorsement.

He said: ‘Essentially what that will do is set a minimum standard in relation to training and qualifications, which would allow a medical practitioner doing cosmetic surgery to actually apply for and meet those requirements.

‘That would then be on the public register. That would help the public in terms of knowing people have met certain minimum requirements.

‘Again, that will ultimately need to be something approved by all health ministers in Australia through the Medical Board of Australia. We expect to have that finalised for ministers’ consideration early next year.’

Ministers ‘driving a reform agenda’

Senator Urquhart noted: ‘There has been criticism of the pace of response by AHPRA… hopefully that pace is now ramped up with all those things you’ve just talked about.’

And when Senator Ruston asked about the Federal Health Department’s ‘relationship with AHPRA; if you were concerned around some regulatory aspect’, Department Secretary Professor Brendan Murphy emphasised: ‘My department is working very closely with AHPRA around the cosmetic surgery issue at the moment.

‘But ultimately if we wanted to set AHPRA on a different course – cosmetic surgery is a good example – then through Health Minister (Mark) Butler, we would go to the ministerial council and say, ‘We think AHPRA needs to do more work around regulation of cosmetic surgery.’ The ministerial council would then instruct AHPRA to do that work.’

Professor Murphy added ministers have been ‘particularly concerned about cosmetic surgery and they have been driving a reform agenda there. And AHPRA is very responsive to the direction of the ministerial council.’

Public expectation re ‘surgical training’

Senator Ruston tackled one of the cosmetic industry’s most controversial issues directly: ‘The simple question is, Mr Fletcher: do you believe there is a public expectation that when somebody is going to have invasive surgery, the person who is purporting to be the surgeon should have surgical training in excess of the MBBS?’

Fletcher answered: ‘The independent review we commissioned clearly showed there was a lot of confusion for the community about the education and qualifications or training of people who were offering cosmetic surgery services.

‘The review has actually recommended the development of an ‘area of practice’ endorsement on registration, which would set minimum standards and training requirements, which would then allow a practitioner to have an endorsement on their registration indicating they’ve met a certain requirement around education and training to undertake cosmetic surgery.’

‘Surgeon’ to become protected title

AHPRA CEO Martin Fletcher then added the hearing’s most decisive revelation: ‘I also note that health ministers collectively have agreed to protect the title ‘surgeon’ as well.

‘So that will become a protected title in the national law.’

Fletcher emphasised: ‘What’s very clear, when you look at the cosmetic surgery industry, is that there is significant information asymmetry for consumers.

‘The more we can help people make safe choices about the practitioners they see, the better it is going to be for the community.’

Review into ‘industry’ not ‘surgery’

Senator Ruston raised the issue that the ‘independent review into the Australian cosmetic industry, I note, doesn’t use the word ‘surgery’. It says it’s an independent review into the Australian cosmetic ‘industry’.

‘Yet one of the recommendations of that review was that we have a cosmetic surgery enforcement unit. I know it’s a detail around the nomenclature here, but the review was silent on, it makes no recommendations in regard to, the term cosmetic ‘surgery’, does it?’

Fletcher replied: ‘The review wasn’t a review of the cosmetic surgery industry widely. It was specifically looking at the question of medical practitioners who undertake cosmetic surgery and what needed to be done to improve the safety of those services for the community.

‘The cosmetic surgery enforcement unit which we’ve established within AHPRA was one of our major responses to the recommendation of the review.

‘At the time of the review, the review was aware that ministers, there was a consultation occurring about the question of protecting the title ‘surgeon’. So the review didn’t look at that specifically because that was a different process being led through government.

‘But it ultimately made the recommendation about creating the ‘area of practice’ endorsement, which would be an Australian Medical Council accredited requirement.

‘We’ve accepted that recommendation and we’re working with the AMC to get that endorsement in place.’

Senator Ruston asked: ‘Is the Australian College of Cosmetic Surgery and Medicine accredited by AMC?’ Fletcher replied: It’s not. It’s not an AMC-registered specialisation.’

‘Area of practice’ regulatory tool

Senator Ruston also raised the issue: ‘Going back to the cosmetic surgery inquiry recommendations, in September Minister Butler announced the Medical Board would be embarking on a process of endorsement around the credentialling of medical surgery by adding an ‘area of practice’ or in terms of endorsement on a medical qualification. What was the rationale behind doing that? ‘I would have thought there clearly exists a pathway for specialist plastic surgeons. They have an accredited college. So I’m interested to understand the rationale behind coming up with an endorsement on a base qualification to enable somebody to undertake an activity that wouldn’t normally be accredited under a different mechanism.’

Fletcher answered: ‘The ‘area of practice’ endorsement was actually a recommendation of the independent review. So essentially the Medical Board has agreed to act on that recommendation. And essentially an ‘area of practice’ endorsement is really a regulatory tool.

‘The reason the review recommended this was needed was because of the absence of any minimum qualifications or training requirements in relation to medical practitioners who are undertaking cosmetic surgery.

‘So the endorsement is a means by which those standards could be set. It’s done through the Australian Medical Council, so they’re independently verified, if you like, and accepted by the Medical Board of Australia, and then they would appear on the public register.

‘So a consumer who was thinking about undertaking cosmetic surgery would know whether somebody had that endorsement on their registration.

‘It’s also important to note, Senator, that this is part of a wider package and ministers have also decided to amend the national law to protect the title of ‘surgeon’.

‘And there’s substantial work occurring through the Medical Board on essentially strengthening some of the existing guidelines for medical practitioners who undertake cosmetic surgery.’

‘Cosmetic’ v ‘plastic’ surgeon

Senator Ruston also probed the controversial issue dominating much of the recent media coverage, asking: ‘What’s the difference between a cosmetic surgeon and a plastic surgeon, apart from the qualification they have in terms of the procedures that they undertake?’

Fletcher replied: ‘Plastic surgery is a recognised area of specialty.’

To which, Senator Ruston continued: ‘What’s the difference in what they actually do?’

Fletcher answered: ‘Currently, any medical practitioner could call themselves a cosmetic surgeon and could potentially undertake cosmetic surgery.

‘Obviously the expectation is that they do that within their skills and competence and their education and training; but at the moment there is nothing that stops them doing it, which is why the measure around protecting the title stops them calling themselves the ‘surgeon’ – and which is why the area of practice endorsement would then highlight those practitioners who are undertaking cosmetic surgery having met requirements around minimum standards of training and qualifications.’

Senator Ruston pushed on: ‘I’m still at a loss to understand why we are talking about this, when clearly the word ‘surgeon’ – I think every Australian understands the word ‘surgeon’ needs to be protected.

‘So in protecting the word ‘surgeon’ through the ministerial council in the direction that will obviously follow into national law, will that prevent somebody who is currently calling themselves a cosmetic surgeon from practising plastic surgery without the necessary qualification to be a plastic surgeon?’

Fletcher explained: ‘Ministers will need to decide, in framing the legislative amendment, which current areas of specialist registration would be allowed to use the protected title of ‘surgeon’. That’s something I know the Ministerial Council is looking at.

‘Once that’s legislated, it would be an offence under the national law for somebody to hold themselves as a ‘surgeon’ if they didn’t have one of the areas of specialist qualification that allowed them to use that title.

‘It wouldn’t stop someone undertaking cosmetic surgery, but they could not call themselves a ‘surgeon’.’

Current regulatory limitations

Senator Ruston sought further clarification: ‘Somebody can undertake surgery on someone’s face, invasive surgery, and you have no power as a regulator to do anything about that if they don’t call themselves a surgeon? ‘I can call myself a cosmetic interventionist and undertake invasive surgery and you have no power?’

Fletcher confirmed: ‘We would certainly have power to act on that, if what was clear was that your performance in undertaking those procedures fell below the standard that was expected, or that you were practising in a way that was outside your education and training and competence.

‘But this is what the review highlighted: that currently any medical practitioner could call themselves a cosmetic surgeon and undertake cosmetic surgery.

‘That will, in part, be addressed by restricting the use of the title ‘surgeon’ by amending the national law.

‘The ‘area of practice’ endorsement will further help by making clear what the minimum standards of training and education are for people who get the endorsement on their registration. That will be publicly available.

‘But the national law doesn’t allow us, except in very few specific cases, to prohibit somebody from undertaking a certain practice.’

Senator calls for ‘surgeon’ logic

Senator Ruston summed up her frustration with past and current confusion surrounding use of the title ‘surgeon’ by asking: ‘What has been the resistance for AHPRA not making a blanket recommendation that use of the term ‘surgeon’ should be protected under national law? ‘It needs to be protected and, in order for somebody to be able
to call themselves a ‘surgeon’ of any variety, they need to have the endorsement of the AMC – and obviously the relevant college that needs to be accredited with AMC to be able to do it.

‘I really can’t understand the logic behind saying somebody can be a ‘cosmetic surgeon’, even with these extra things that have been recommended that you’re proposing to do, and they’re not required to have the necessary qualifications that exist under the College of Plastic Surgeons and that sit with that. ‘It seems quite anomalous to me that your organisation, as the regulator, is going to water down what the Australian public think they’re currently protected by in relation to a surgeon, instead of just saying, ‘You can’t be a cosmetic surgeon – because a cosmetic surgeon is a plastic surgeon in everybody’s mind – unless you are a plastic surgeon’.

‘What is the resistance to go to that point? What’s the logic?’

Safer choices – not ‘outlaw an industry’

AHPRA CEO Martin Fletcher responded: ‘Senator, perhaps I can restate what’s in place. We welcome the fact ministers have decided to protect the title ‘surgeon’. We think that is a good step, for all the reasons that you’re saying.

‘We think it makes sense for this ‘area of practice’ endorsement around setting minimum standards for training and qualifications for people who are working in, and who want to undertake, cosmetic surgery or cosmetic practice, because we want consumers to make safer choices.

‘We’re not trying to outlaw an industry here; we just want to help people make safer choices.

‘I think it’s premature at the moment to speculate on whether that is going to be a lower standard. It may well be a higher standard.

‘That’s the work the Australian Medical Council are doing at the moment as the independent accrediting body: looking at things like what the required graduate outcomes are – or the outcomes you’d expect of somebody having this endorsement – and what the required training inputs are.

‘Once that’s established in the form of an accreditation standard, which will be approved by the Medical Board, that will then also be reflected in a registration standard approved by the ministerial council – and then programs of study who believe they can meet those requirements will be able to apply for accreditation.

‘I don’t think we should assume it’s going to be a race to the bottom.’

To which Senator Ruston objected: ‘Well, no, that’s where we are at the moment, I would suggest.’

And Fletcher retorted: ‘That’s the point of the endorsement. This issue of minimum training and qualifications is not a new issue.’

Surgeon proposal ‘tricky on the words’

Senator Ruston maintained her objections to AHPRA’s approach to use of the word ‘surgeon’ and declared: ‘I think we’re being a little tricky on the words. I still don’t understand why AHPRA hasn’t come out and said, ‘You can’t be a cosmetic surgeon unless you’re actually a plastic surgeon.’

Fletcher responded: ‘We don’t have the power to do that, Senator.’

Senator Ruston then asserted: ‘You could be recommending it to the ministers.’

Fletcher replied: ‘We support the protection of the title ‘surgeon’ – and we provided advice to ministers to consider around what we think the scope of that should be.’

To which Senator Ruston continued: ‘But your recommendation of what that scope could be is around an endorsement – and not actually using the existing endorsement that exists within the plastic surgeon’s remit.’

Separate and special regulatory approach

Federal Health Department Secretary Professor Brendan Murphy responded to Senator Rustin’s complaint: ‘Maybe, Senator, but for most people to get that required endorsement, they may have to show a level of training which is consistent with the plastic surgery qualification of their colleagues. That’s to be determined.

‘But the challenge is that any surgeon, an orthopaedic surgeon in theory, could do cosmetic surgery at the moment and call themselves ‘surgeon’. The only way AHPRA can regulate them is if they practise clearly outside their accepted training, experience and scope of practice.

‘Most medical practitioners work very responsibly within the training that they have, even through the basic medical qualification – GPs do surgery; lots of rural GPs do surgery.

‘They’re not fellows of the college of surgery but they do training. They do skin cancer surgery. Most doctors are totally responsible and work within their training and scope of practice.

‘The challenge is that this industry, to be frank, is very different – and it needs a separate and special regulatory approach.’

‘Grand-fathering’ for new arrangements?

Senator Ruston subsequently noted: ‘Professor Murphy, you made a comment that you believe there was every possibility the accreditation or endorsement process for cosmetic surgeons under the various activities that are currently on foot could see these particular practitioners qualified in excess even of a plastic surgeon.

‘I’m just seeking an absolute guarantee from Mr Fletcher that this will not mean existing people who call themselves ‘cosmetic surgeons’ will be grand-fathered into the new arrangements without undertaking the necessary accreditation.’

Fletcher confirmed: ‘The Australian Medical Council is doing the work as the independent agency to set the requirements for accreditation, and I would not expect that there would be grand- fathering arrangements.

‘There may need to be some sort of transitional arrangement, as those new requirements are implemented, but I would not expect there would be grand-fathering arrangements per se.’

Senator Ruston insisted: ‘So you can categorically rule out this quote is not correct: ‘There are some people who are currently doing cosmetic surgery whose training and experience would warrant grand-fathering, and there are others whose training experience might not, but clearly there will be some people who’ll be so well trained, experienced and qualified that they can be grand-fathered’?’

Professor Murphy explained: ‘They would have to meet the new standard to get endorsement of practice. So, there may be some people who would meet that new standard when it’s established.

‘But I think what Mr Fletcher is saying is ministers are clear on the view that, to get the endorsement of practice, you would need to meet the new standard set by the AMC.’

Senator Ruston sought clarification: ‘You will need to be accredited to that standard? Professor Murphy confirmed: ‘Yes. To get that endorsement of practice, you would need to demonstrate a level of training and qualification sufficient to meet that standard.

Senator Ruston continued: ‘Accredited training?’ And Professor Murphy replied: ‘Yes, the training has to be determined by the AMC. They are looking at what that means.’

However Senator Ruston further enquired: ‘Is the AMC potentially considering that accreditation or endorsement could be just on the basis of experience?’

Fletcher answered: ‘The AMC is working out what the requirements are, both in terms of the educational program and the graduate outcomes, that would need to be met in order to be accredited.

‘Once that standard is established, it would sit in a relationship with a registration standard, which would be set by the Medical Board of Australia and approved by ministers.

‘Providers who think they meet that requirement could apply to be accredited and, if they were accredited against that standard, that would mean people who had undertaken that training program could then have this ‘area of practice’ endorsement on their registration.’

Surgery can continue ‘without endorsement’

Senator Ruston emphasised to both Martin Fletcher and Professor Murphy that the person she had quoted re potential ‘grand-fathering’ ‘was the head of the Medical Board.’

Fletcher responded: ‘The point to make is that, if you don’t have the endorsement, it doesn’t mean that you would necessarily stop undertaking cosmetic surgery.’

Senator Ruston angrily asserted: ‘Australians would be very concerned at the lack of clarity that you’ve been able to provide here today that cosmetic cowboys would be off the market.

‘You have only served to make me think that there is going to be an ongoing process of being able to short-cut one’s way to a qualification that will enable you to cut up someone’s face.

‘I remain very concerned. I put on the record that I am very concerned.’

She concluded: ‘Finally, Mr Fletcher, will you be making yourself available to attend estimates into the future?’

Fletcher answered: ‘The Ministerial Council, who we’re accountable to, when we sought their advice in relation to the invitation to appear before the Senate estimates agreed that we should appear on a one-off basis to aid transparency.

‘If there was a future invitation for us to appear before a Senate estimates committee, we would need to go through a process again of confirming that health ministers were comfortable with us doing that.’

Senator Ruston declared: ‘I put on the record that I will be requesting AHPRA attend future estimate hearings, particularly as I would like to find out what’s happening.

‘We have only a four-week process of consultation in relation to this very serious issue.

‘I’d like you back here in February to answer questions about how that consultation rollout has occurred, and how we’ve gone in changing the national law in relation to the use of the term ‘surgeon’. I’ll put that on the record now.’ AMP