A landmark legal challenge against new cosmetic surgery regulations instituted by MBA and Ahpra has been listed for hearing in the NSW Supreme Court on 29 February 2024.
A group of around 30 prominent surgeons is financing a landmark legal challenge against medical industry regulators the Medical Board of Australia (MBA) and Australian Health Practitioner Regulation Agency (Ahpra) over what the surgeons describe as ‘misogynistic, misleading and potentially dangerous‘ changes governing cosmetic surgery in Australia.
The group objects to 2 key elements stipulated in controversial new regulations applying across the cosmetic surgery industry from 1 July 2023:
- surgeon training requirements surrounding ‘endorsement of registration’; and
- introduction of a process encompassing mental health checks for potential patients.
The legal challenge was instituted in the NSW Supreme Court in mid-October under the names of Geelong-based former President of the Australian Society of Plastic Surgeons (ASPS) Dr Peter Callan and Sydney-based plastic surgeon Dr Simone Matousek – as nominal representatives for the group.
The legal action has been advised by high-profile Sydney barrister Bret Walker SC and has been listed for formal hearing in the NSW Supreme Court on 29 February 2024.
Debate within the surgical profession – over both the new MBA/Ahpra regulations and the controversial legal action – has ramped up significantly following vocal backing by the Royal Australasian College of Surgeons (RACS) Victorian division to ‘endeavour to have this dangerous situation overturned’.
Chair of the RACS Victorian State Committee Dr Patrick Lo confirmed: ‘Fellows of the College have, rightly, raised concerns regarding the dual messages being sent from the accreditation authority. The College continues to push for reconsideration by these accreditation entities.’
Dr Lo, paediatric neurosurgeon at Melbourne’s Royal Children’s Hospital and adult neurosurgeon at both Royal Melbourne and Melbourne Private Hospitals (where his practice includes spinal, tumour and trauma surgery) emphasised: ‘On the one hand, the law governing the use of the term ‘surgeon’ has been successfully passed in all jurisdictions, in order to protect our public and community members from rogue operators.
‘Yet, at the same time, what appears as superficial ‘rubber stamping’ of dubious qualifications may undermine this entire process and continue to put our patients at risk.‘ The legal action’s supporters also include Dr Keith Mutimer, former Vice President of RACS and former ASPS President, as well as many specialist surgeons (including ENTs and ophthalmologists).
The group insists its objective is to ‘restore confidence across the industry‘ by ‘overturning some of the worst aspects of the ill-considered new regulations’ in order to prioritise ‘removal and restriction of the ‘cosmetic cowboys’.’
Dr Callan and Dr Matousek said they were spearheading the legal action because the ‘new and reactive regulatory requirements still allowed untrained doctors to operate on unsuspecting Australians’; hence they fear that ‘future patients will be misled to believe the sector had been cleaned out of medical mavericks, when in fact, they had been allowed to continue’.
Dr Mutimer added that, after 30 years as a specialist surgeon, he had ‘never seen such an ill-conceived and reactive response by the Board’ and he could ‘not stand by and allow unsuspecting Australians to be disfigured, have their lives put at risk or be driven overseas for surgery’.
Dr Callan declared: ‘This board has known about the ongoing dangerous practices for years and has failed to protect patients and is still failing.’
Dr Matousek added: ‘Australians need to know if they are being operated on by a qualified specialist or not. It is a pretty simple, safe and ultimately sensible outcome.’
Dr Callan and Dr Matousek summed up: ‘On behalf of our patients and our colleagues – who are all experienced specialised cosmetic surgeons – we have been left with little choice, other than to legally challenge the regulator over the validity of the new guidelines.
‘We maintain the MBA (and Ahpra) acted outside its legislated powers to introduce these new guidelines. While the legal action is largely framed by administrative law, we are motivated by what we believe are paternalistic, misleading and potentially dangerous rule changes, governing plastic surgery in Australia.
‘We can no longer stand by while our collective medical reputations are irreparably shredded and our ability to perform surgery exclusively, efficiently and safely is forever undermined.
‘We have an active, growing and invested base of specialist cosmetic surgeons who are all intent on prioritising patient safety – and who remain immensely proud of our esteemed profession.’
WHILE THE LEGAL ACTION IS LARGELY FRAMED BY ADMINISTRATIVE LAW, WE ARE MOTIVATED BY WHAT WE BELIEVE ARE PATERNALISTIC, MISLEADING AND POTENTIALLY DANGEROUS RULE CHANGES.
Endorsement of registration
Immediately following announcement of the new model of accrediting cosmetic surgery
– known as ‘endorsement of registration’ – RACS President Dr Sally Langley (a plastic and reconstructive surgeon) publicly confirmed she had ‘concerns’ with the endorsement process.
She told insightplus.mja.com.au her primary worry was that ‘an accredited qualification for cosmetic surgery would be held to a lesser standard than the qualifications which are currently required to be registered as a specialist surgeon’.
Dr Langley announced: ‘RACS does not support the endorsement process. Our main concern is that surgeons should be doing surgery.’
She emphasised those surgeons ‘need be trained to RACS standards’ – at least ‘five years, on top of being a hospital doctor and achieving competency, not just medical and surgical skills, but teamwork, collaboration, decision making and professionalism etc.
‘We can’t see that a shorter, more limited training program for the ‘endorsement’ process can be safe, or acceptable, for the public.
Dr Langley also emphasised that, in addition to concerns about professionalism, the ‘prospect of training is not feasible.
‘How will other medical professionals do the training? What sort of clinics or hospitals will these trainees go to? It’s just unfathomable to me.’
She insisted: ‘We at RACS know what a big job Australian Medical Council (AMC) accreditation is. It takes a lot of staff and it’s very expensive. I can’t see an AMC-accredited endorsement program being achievable.’
She summed up: ‘We know that cosmetic procedures have become rampant in the United States and countries in Asia.
‘But we’ve really got to try to stop this endangerment of the community.’
Stopping ‘Cosmetic Cowboys’
Dr Callan and Dr Matousek similarly emphasised the primary focus of their legal challenge is the failure of the new ‘surgeon training’ requirements – via the ‘endorsement of registration’ process – to address public concerns about stopping continued practice by identified industry ‘cowboys’.
They said protecting patients ‘is the key to all responses’ to Ahpra and the MBA.
To that end they highlighted: ‘Protecting our patients is mission-critical and we will not rest until
we have achieved that – and the regulators do what they should have done in the first place.
‘This includes:
- Ensuring qualifications of cosmetic surgeons are very clear and transparent.
- There are two standards of doctors who can operate. Those who have done surgical qualifications in Australia and those who have not. Practitioners need to make their training clear in all communication.
- Protecting patient safety.
- The new Ahpra practice guidelines do not improve patient safety. They are over-reaching, symbolic and punitive rules that are easy to enforce. These changes only serve to allow Ahpra to punish good practitioners and give the appearance the regulators are taking action to clean up the sector.
- Ahpra advertising guidelines do not improve patient safety. They make it harder for patients to identify good practitioners. There is no evidence that limiting social media improves surgical outcomes.
- Ahpra needs to focus its attention and taxpayer resources on stopping bad practice.’
GP referall & Body Dysmorphic Disorder
The new regulations emphasise ‘assessment of patient suitability’ – and require patients seeking cosmetic surgery to ‘obtain a referral to discuss their motivations with a GP who knows their medical history and can share this information with the doctor they are referred to’.
In addition, the practitioner who will perform the surgery ‘must discuss and assess the patient’s reasons and motivation for requesting the surgery, including external reasons (for example, a perceived need to please others) and internal reasons (for example, strong feelings about appearance). The patient’s expectations of the surgery must be discussed to ensure they are realistic.’
The practitioner who will perform the surgery must also assess the patient for underlying psychological conditions such as body dysmorphic disorder (BDD), which may make them an unsuitable candidate for the surgery.
The practitioner doing the assessment must use a validated psychological screening tool to screen for BDD. The process and the outcome of the assessment and screening
must be documented in the patient’s record.
If screening indicates the patient ‘has significant underlying psychological issues which may make them an unsuitable candidate for the cosmetic surgery, they must be referred for evaluation to a psychologist, psychiatrist or GP, who works independently of the practitioner who will perform the surgery’.
In addition, the practitioner who will perform the surgery must discuss other options with the patient, including surgery, procedures or treatment offered by other health practitioners and the option of not having the surgery.
The new regulations also require that a patient seeking cosmetic surgery must have at least 2 pre-operative consultations.
The patient’s first consultation must be with the practitioner who will perform the surgery or another registered health practitioner who works with the practitioner who will perform the surgery (not a patient advisor or an agent).
At least 1 of the 2 consultations ‘must be in-person with the practitioner who will perform the surgery’.
The patient ‘must not be requested to sign consent forms at their first consultation’ and the patient cannot consent to cosmetic surgery ‘until they have had an in-person consultation with the practitioner who will perform the surgery’.
The decision to have the surgery (provision of informed consent) must be made at a consultation with the practitioner who will perform the procedure (in person or by video).
In addition, there must be a cooling-off period of at least 7 days after the patient has had 2 consultations and given informed consent (signed consent forms), before the surgery can be booked or a deposit paid.
However, Dr Callan and Dr Matousek said the new rules – involving ‘mental health’ checks for potential patients via GP referral and BDD checks, plus ‘additional costs, inconvenience and the indignity of being treated disrespectfully’ – will ‘catastrophically fail to protect future patients’ and were ‘deeply insulting to women, in particular, whose mental health must be unreasonably questioned, prior to surgery, when there is no evidence of BDD, which remains a rare psychiatric condition’. (See accompanying breakout box headed ‘BDD affects 2% of the population’.)
They said patients ‘are being humiliated, having their mental health questioned in a rule change that has no basis in clinical evidence.
‘It is disempowering and paternalistic, and there is no clinical evidence that any of these additional demands – where patients are forced to endure the additional cost and inconvenience of seeking a GP referral first and then have two consults with the specialist cosmetic surgeon – will improve patient safety.’
They noted already ‘overwhelmed GPs are being forced to see otherwise perfectly healthy patients just to get a referral.
‘Many GPs have no experience of, nor interest in, cosmetic surgery. This demand also ignores the cultural sensitives, experienced by many patients.’
Finally, many concerned surgeons claim the testing-for-BDD factor is a regulatory ‘straw man’, because ‘no respectable surgeon would touch those patients in the first place’. AMP
New rules & ‘informed consent’
The new guidelines for professionals practising cosmetic surgery came into effect from 1 July 2023.
They followed a report from an independent inquiry commissioned by Ahpra and the MBA into the cosmetic surgery industry published in September 2022, followed by a public consultation in December.
MBA chair Dr Anne Tonkin noted: ‘We are requiring cosmetic surgery patients to get a referral from a GP and a longer, mandated cooling-off period between the patient giving informed consent and the procedure.’
Outlining extra requirements for the ‘informed consent’ process, Dr Tonkin added: ‘We’re also making it clear that it needs to be the practitioner themselves giving the patient the information at the beginning, and responsible for appropriate care after the procedure.
‘It is also up to the practitioner to be up-front about their training, expertise and experience, and to be up- front about the total costs.’
However, on the controversial ‘endorsement of practice’ regulation, Dr Tonkin also explained: ‘There are a number of people who offer cosmetic surgery without being specialist-trained surgeons. For these people we’re creating an endorsement.
‘The endorsement is the strongest action we can take under national law.’
BDD affects 2% of population
The internationally respected UK-based Body Dysmorphic Disorder Foundation (BBDF) reports surveys have put BDD at about 2% of the population. It ‘affects men and women equally’, is ‘more common in adolescents and young people’ and ‘shares similarities with obsessive-compulsive disorder, health anxiety and social phobia’.
The Foundation notes people with BDD believe themselves to be ugly or defective; but because of this stigma, they tend to be ‘very secretive and reluctant to seek help because they are afraid others will think them vain or narcissistic’ when in fact they are ‘quite the opposite from being vain or deliberately self-obsessed’.
The Foundation also reports that ‘because of the stigma attached to BDD and the current poor level of awareness, on average a person with BDD will suffer for 10 years before seeking help’.
On the causes of BDD, the Foundation says there has been very little research; however ‘scientists believe it can develop due to a combination of genetic predisposition (nature) and environmental factors such as traumatic life experiences (nurture)’.
The Foundation also notes that while ‘many of us are concerned with some aspect of our appearance, it doesn’t always amount to BDD’.
In order to be diagnosed as BDD, the preoccupation for appearance ‘must last for at least an hour a day, cause significant distress and/or interfere with at least one area of life’.
The Foundation explains BDD ‘is a problem of excessive worry and shame about appearance that will persist despite reassurance. It is often associated with fears of rejection or humiliation.’
Lowering safety standards
Upon release of the new regulations, The Sydney Morning Herald published the headline ‘Specialists say health regulator lowering safety standards for cosmetic surgery’.
The Herald summed up: ‘Critics say proposed new standards designed to clean up the cosmetic surgery industry, that would effectively allow non-surgeons to do operations, is further evidence of the need for a royal commission into the national health watchdog.’
It noted Ahpra ‘has put forward a new ‘endorsement’ model that has come under immediate criticism from leading experts in the field’.
Professor Mark Ashton, former ASPS President, said Ahpra’s proposal ‘highlighted again that health system regulation was broken and not protecting the public’.
He asserted: ‘Ahpra is planning to endorse a whole variety of practitioners, many of whom have not done accredited surgical training and would not be able to pass the standards required for all other types of surgery that exist.
‘We need a royal commission. I have previously called for a royal commission into Ahpra and the way it handles medical complaints and protects the public. I am dismayed at a regulator which appears to have misread public concern about surgical safety.’
Similarly ASPS President Associate Professor Nicola Dean told the Herald the proposed new standards of accreditation for cosmetic surgery training ‘meant far lower standards of education for those performing cosmetic surgery than for any other type of surgery’.
She emphasised: ‘The only existing endorsement model is for acupuncture, and that’s for doctors to do an additional stand-alone course to become acupuncturists. Cosmetic surgery is not anywhere near acupuncture; it is real surgery and has real risks associated with surgery.
‘The idea of having a stand-alone program in cosmetic surgery, where you don’t have to be a surgeon, is already deeply problematic. This doesn’t help improve patient safety, it jeopardises it further.’
Professor Dean asked: ‘Why is it that a young woman undergoing insertion of breast implants is less deserving of a high standard of training for her procedure than someone having a gallstone operation or surgery for knee problem?
‘When a patient is cut open, regardless of the purpose, there is the same risk of bleeding and infection, or other potentially devastating complications that require specialist skills to manage, so surely the same standards should apply.’
Professor Ashton added Ahpra’s acceptance and support for the endorsement plan ‘represents a dangerous departure from well-established, accepted standards of surgical training.
‘It will not only fail to protect the public but will lead to more confusion around who is properly trained and makes a bad problem worse.’
Dr Tim Edwards, ASAPS President, told the Herald he was ‘astonished’ that Ahpra would support an ‘endorsement’ model, given the harm to patients done by non-specialist practitioners that had been revealed in the media recently.
He said: ‘We find it unfathomable that you would want to create a second tier of inferior training and lesser standards. That doesn’t make sense to us.
‘Cosmetic surgery is equally invasive and dangerous as any other form of surgery. The only conclusion I can come to is that people, politicians and Ahpra regard it as frivolous.
‘This is a misogynistic point of view, because it’s largely women who under this surgery and it’s not being taken seriously.’
