Australia’s peak regulatory bodies have announced major reviews into two of the most controversial topics surrounding cosmetic medicine: use of the title ‘surgeon’ and ‘patient safety risks’.
For the cosmetic medicine industry, 2022 has begun with two potentially headline- generating government inquiries:
- the Health Council – formerly the Council of Australian Governments (COAG) Health Council – has released a Consultation Regulation Impact Statement (RIS) into
- the use of the title ‘surgeon’ by medical practitioners in the Health Practitioner Regulation National Law and is seeking feedback from both members of the profession and the public;
- meanwhile the Australian Health Practitioner Regulation Agency (AHPRA) and Medical Board of Australia (MBA) have announced an ‘external review of patient safety issues in the cosmetic sector’ – led by outgoing Queensland Health Ombudsman Andrew Brown, with public consultation beginning in early 2022 and a formal report due by mid-2022. (See accompanying story: ‘AHPRA & MBA target cosmetic patient safety.)
The Health Council summed up the rationale for its inquiry with a ‘Problem Statement’ noting: “All medical practitioners registered under the National Registration and Accreditation Scheme may use the title ‘surgeon’ in their practice, regardless of whether they have obtained entry-level surgical training or advanced surgical qualifications.
‘This is because the Health Practitioner Regulation National Law does not protect the title ‘surgeon’ as a stand-alone title.
‘Rather, it is protected only when it is coupled with another word for a recognised surgical specialty, such as ‘specialist orthopaedic surgeon’, ‘specialist paediatric surgeon’ or ‘specialist plastic surgeon’.”
The Problem Statement emphasised Health Ministers are particularly concerned that:
- use of the title ‘surgeon’ by medical practitioners may be confusing the general public, which may expect and believe that all medical practitioners who use the title have obtained comparable surgical training and qualifications;
- current regulation is not helping members of the general public to understand how the regulation of cosmetic surgery differs with that for other surgery;
- the expectation and/or belief that regulation of all surgery is similar or identical may be creating risks and harm to members of the public;
- the practice of cosmetic surgery and widespread use of the informal title ‘cosmetic surgeon’ may be strongly and/or disproportionately associated with these risks and harm.
Cosmetic surgery ‘risks and harm’
The Problem Statement also declared: ‘A broad range of medical and industry characteristics of cosmetic surgery may heighten the association of the cosmetic surgery sector with risks and harm.
‘Unlike most other areas of medicine, cosmetic surgical proceduralists operate in a commercial market where providers seek financial gain and consumers undergo procedures as a matter of choice, rather than for treatment of a recognised medical trauma or disease.’
The Problem Statement noted that the cosmetic surgery market is defined by the:
- nature of the surgery (elective only);
- cost of procedures (solely borne by the consumer and subject to greater cost competition between providers than many other areas of medicine);
- commercial service delivery models (involving corporate providers who advertise in and primarily attract business through social media platforms and who may not be licensed to carry a full range of appropriate sedative medicines);
- absence of referral or involvement by independent, third parties such as GPs.
The Problem Statement declared bluntly: ‘These conditions can create perverse incentives for medical practitioners to work outside of their competence and deliver substandard services.’
The problem is exacerbated by the fact that, generally, the National Law ‘regulates what professional titles health practitioners may use, but it does not – with just a few exceptions – restrict what procedures they can perform’.
Medical practitioners are instead advised – again in general terms – by the Medical Board to:
- perform only those procedures for which they have appropriate training, expertise and experience, and
- not make misleading claims about their qualifications, experience or expertise.
Power imbalance: public v cosmetic practitioners
The Health Council’s Problem Statement highlighted its concern that ‘members of the public seeking advice about whom to consult to perform a given procedure generally obtain this information from a GP.
‘Most cosmetic surgery consumers however do not discuss getting a procedure with a GP and source a cosmetic surgeon through other channels.
‘Health regulators rely, therefore, on the title protection provisions of the National Law to encourage consumers to consult appropriate practitioners.
‘This reliance can create information and power asymmetry between the public and practitioners.’
The Problem Statement reported: ‘There are numerous documented cases of cosmetic surgical practitioners taking advantage of this asymmetry and performing procedures:
- without providing appropriate counselling about potential and actual risks and outcomes;
- in inappropriate premises;
- of inappropriate duration and timing;
- without adequate pre, intra and post-surgery management;
- resulting in post-operative complications and un-aesthetic and/or adverse outcomes.’
Hence this Regulation Impact Statement (RIS) ‘is seeking data and information from stakeholders to help determine whether patients and consumers:
- can reasonably source the information that is required to comprehend the risks involved with certain procedures, and particularly cosmetic surgical procedures;
- can reasonably be expected to make adequate sense of the information about surgical risks that is readily available.’
Evidence of ‘wide variety of harms’
The RIS also declares that a wide variety of harms have been caused by poor cosmetic surgery and post-surgery practices, and in cases where practitioners have performed cosmetic surgery outside their competence.
The RIS specifically presents evidence of:
- practitioners performing procedures such as laser lipolysis, liposuction, abdominoplasty and breast augmentation without adequate training, pre-surgical assessment, pre-surgical informed consent, and sedation;
- resulting in such adverse outcomes as: cyanosis (deoxygenation of the skin); split wounds; fevers and infections; excruciating pain; haemorrhage; excessive tissue trauma; scarring; local anaesthetic toxicity; sepsis; pneumothorax (collapsed lung); central nervous depression; cardiac arrest; death.
Cosmetic surgery not recognised ‘specialty’
The key issue for the Health Council is that ‘cosmetic surgery’ is not recognised as a medical specialty by either the Medical Board or the Australian Medical Council (the independent national standards body for medical education and training that accredits standards and policies for medical specialist programs of study in Australia).
Consequently, the title ‘cosmetic surgeon’ has no standing under the National Law – and the practice of cosmetic surgery is not restricted by the title protection provisions of the National Law in the same way as, for example, the practice of neurosurgery, or plastic or cardio- thoracic surgery.
The Health Council’s Regulation Impact Statement (RIS) sums up: ‘Any registered medical practitioner may therefore call themselves a ‘cosmetic surgeon’ and the practice of ‘cosmetic surgery’ cannot therefore be regulated by authorities to the same degree as specialist surgical practices.’
As a result, Health Ministers ‘are interested to know if this means the practice of cosmetic surgery is not being regulated to the extent expected or assumed by the public.
‘They further wish to learn if the general public understands that there is no legal requirement for ‘cosmetic surgeons’ to undergo further or advanced surgical training in order to describe themselves as such.
“In short, Ministers want to know if the public understands the surgical training that a self-described ‘cosmetic surgeon’ has received may vary widely and be far less comprehensive than that received by accredited specialist surgeons.’
National Law restrictions: ‘title’ v ‘practice’
The RIS observes that lay readers may wonder why Health Ministers do not simply restrict some medical practitioners from practicing cosmetic and other types of surgery, if public confusion about medical qualifications and current use of the title ‘surgeon’ by medical practitioners is indeed associated with risks and harm.
The simple answer is that the National Law functions by restricting the use by registered health practitioners of ‘protected professional titles’ rather than by restricting ‘types of practice’.
This means the National Law ‘is designed to regulate what practitioners may call themselves, rather than specifying what they can do’ – because practices evolve ‘and can do so rapidly, in response, for example, to technological and disciplinary innovations’ which ‘makes prescribing practices in legislation impractical’.
‘Cosmetic surgery’, for example, encompasses a wide range of elective surgical procedures designed to alter an individual’s appearance. The scope of procedures that can be considered ‘cosmetic surgery’ changes as the relationships between medical technology, surgical technique and consumer demand expand the range of available procedures – and alter the ways in which they are performed.
Managing practitioner conduct
As a result, under current regulations judgments about whether a practitioner’s conduct meets required standards are made by National Boards and state and territory tribunals, who refer to the National Law and ‘other instruments’ in order to determine whether those standards were met.
The National Law describes mandatory notification requirements for reporting registered health practitioners who fail to meet required professional standards.
The ‘other instruments’ used under the National Law to assess medical practitioner conduct include the Medical Board’s Code of Conduct, which outlines the professional values, qualities and ethical practices expected of medical practitioners and outlines ‘principles of good medical practice’.
Dissatisfied patients and consumers can notify the national regulator (AHPRA) or a health complaints entity (such as the NSW Health Care Complaints Commission) or take civil action for negligence.
The Medical Board’s guidelines for performance of cosmetic surgical procedures reinforce and expand the requirements outlined in the MBA’s Code of Conduct.
Provision of cosmetic surgical procedures is also regulated by other measures that vary across Australia:
- in some states procedures may not be performed on children for reasons other than therapeutic, or a mandatory cooling off period is required;
- some states also require designated cosmetic surgical practices be performed in prescribed health service facilities licensed to hold and administer Schedule 4 medicines.
Current regulatory ‘risk of consumer harm’
In light of the general nature of these oversight regulations, the Health Council’s RIS includes a strongly worded section headed ‘Public harm and risk that arise from the current regulatory regime’.
It sums up the current dilemma: ‘Between members of the public and practitioners there can be information and power asymmetry. This contributes to the risk of consumer harm.
‘Prospective patients in cosmetic surgery are advised to consider whether a practitioner has undertaken ‘appropriate training’ in a given field, when they are considering having a procedure. Title protection aims to provide guidance to patients on practitioner capacity to perform given procedures.
‘However, it can be difficult for the public to obtain information from neutral and informed sources, particularly as most cosmetic surgery consumers obtain information about prospective procedures from the practitioners that perform those procedures and from social media.
‘These ways of sourcing information differ from the way in which most patients are referred to a specialist surgeon or other practitioner by a GP.’
Most importantly, the Health Council notes risks such as ‘harm and ongoing complications’ are inherent in any surgery; hence this Regulation Impact Statement seeks to discover:
- how widespread cosmetic surgery resulting in significant harm and complications may be; and
- whether medical practitioners’ qualifications are contributing to potential harm.
Cosmetic surgery ‘industry characteristics’
The Health’s Council’s RIS also includes a section describing the ‘industry characteristics of
cosmetic surgery’.
It emphasises a key concern that ‘as cosmetic surgery is elective, perverse incentives may be created for registered medical practitioners to work outside their competence’.
It adds that cosmetic surgery ‘may also be more corporatised than many other areas of medicine’ – as a result, information on ‘potential linkages between corporatisation and financial incentives and cosmetic surgery, and whether this is leading to significant public risk and harm, is sought from stakeholders’.
In addition, members of the public also generally bear the costs of procedures, including out-of-pocket expenses for revision surgeries.
The Impact Statement notes that poorly performed cosmetic surgical procedures ‘may be significant for both individuals and communities in terms of mental and physical wellbeing and economic impact’ – and again emphasises that stakeholder feedback is sought on the extent to which these costs may be affecting individual consumers and the broader community.
It also spotlights the problem that the current regulatory framework ‘largely facilitates intervention only after an adverse event’, where provision of surgical services may fall below standards expected by the Medical Board and the public.
Hence the RIS poses a series of questions about whether and how current regulatory laws and instruments are doing enough to protect the public and deter practitioners from exaggerating or inadequately explaining their skills and qualifications.
These ‘laws and instruments’ include:
- the title protection provisions of the National Law;
- advertising law and the public register of practitioners maintained by AHPRA;
- as well as laws prescribing certain cosmetic surgical procedures, private health facility licensing laws, state and territory health care complaints entities, consumer law and regulation, the law of negligence, civil liability legislation and criminal law. AMP
Objectives of RIS consultation
The Health Council explains that its Consultation Regulation Impact Statement seeks to help determine if:
- there is widespread belief that cosmetic surgery is regulated in the same way as other surgery;
- current regulation is not helping members of the general public to understand how the regulation of cosmetic surgery differs with that for other surgery;
- the practice of cosmetic surgery, and use of the informal title ‘cosmetic surgeon’, is associated with serious risks and harm to the public.
If these suppositions are confirmed by the consultation process ‘then the current approach to regulating the practice of surgery, and of cosmetic surgery in particular, will demonstrably not be contributing as fully to public safety and confidence in the health system as it should’.
This circumstance in turn ‘will raise further questions about whether market forces can be expected to resolve issues such as those highlighted in the Problem Statement and ‘Public harm and risks’ sections of this RIS’.
Most importantly, it notes that ‘as a preliminary position, this RIS is proceeding with the view that the market cannot be expected to correct the range of problems and harms and risks that it identifies’.
The Regulation Impact Statement emphasises that while medical practitioners currently have considerable freedom or licence to describe their skills and expertise, the current regulatory regime permits any registered practitioner to describe themselves in general terms as a ‘surgeon’ if they choose – and ‘evidence suggests this right is exercised more in relation to the performance of cosmetic than other forms of surgery’.
‘Further, it is exercised more in relation to the performance of cosmetic surgery due to market forces – namely the profits that can be gleaned from providing these services to a large and ever-growing cohort of clients eager to purchase these elective products’.
In the current cosmetic surgery market, ‘cosmetic surgical practitioners are taking advantage’ of the information and power asymmetry between
the public and practitioners – and performing procedures:
- without providing appropriate counselling about potential and actual risks and outcomes;
- in inappropriate premises;
- without adequate pre-, intra- and post-surgery management;
- resulting in post-operative complications and un-aesthetic and/or adverse outcomes that are disfiguring, discomfiting, painful, grave and lethal.
In addition, the RIS notes the cosmetic surgery market is different to almost all other surgical services ‘markets’. ‘It is exclusively commercial – and consumers rely on the advice of the prospective practitioner and information drawn from social media, peer groups and well-resourced marketing campaigns.’
The affordability of cosmetic surgical procedures also ‘plays a much larger role in determining the consumption patterns of cosmetic surgery than most other forms of surgery, which are not elective, are mediated by a GP and involve the choice of a surgeon based on expertise, experience and reputation – and whose costs are met, in significant part, by Medicare and (where relevant) private health insurance’. These safety nets are absent in cosmetic surgery.
Further, cosmetic surgery providers in Australia compete for affordability with providers based in foreign economies where Australian dollars have greater purchasing power. This also makes cosmetic surgery ‘an extraordinary surgical product, as outbound medical tourism for general health issues is not a documented phenomenon in Australia’.
Finally, current regulation facilitates intervention against poor surgical performance only after an adverse event – and often with limited effect. If the market is not performing well in preventing adverse events, then ‘additional or different regulation may be required to prevent more adverse outcomes before they occur’.
If this regulation is to be effective, it ‘should heighten the onus placed on practitioners to better protect the public. One way to do this – without necessitating major legislative reform – is is to require medical practitioners to describe their skills and qualifications with more detail and in a more restricted way’.
Such a requirement would support ‘more likely public expectations medical practitioners using the title ‘surgeon’ will have some form of advanced surgical training’.
While title restriction may have some inflationary effects on prices for some cosmetic surgical procedures, higher prices ‘may encourage prospective consumers to take more care when deciding whether to have a cosmetic surgical procedure – and whom they will engage to provide it. There may well be ‘net social and economic benefits from reduced demand for reparative surgeries and reduced socio- economic costs associated with poor surgical outcomes’.
The RIS sums up bluntly: ‘The continuation of current regulations or a reliance on market forces to improve current conditions is likely to result in continuing and greater risk and harm.
‘Consumers cannot realistically be expected to understand the significance of the nuances of professional titles in the medical profession – and current market conditions have provided some unscrupulous providers with too much latitude to perform dangerous surgeries for which they have inadequate skill.’
Stakeholder feedback sought on 4 options
The Health Council is now seeking stakeholder feedback on four main options (regulatory
and non-regulatory) in response to the issues identified in its Regulation Impact Statement on the use of the title ‘surgeon’.
OPTION 1: Maintain the status quo – with existing regulatory and other tools, with no legislative action or other options undertaken.
OPTION 2: Reform options other than amending the National Law – to help patients and consumers to make informed choices about undergoing surgical procedures and with which practitioners. Regulators may consider options that incentivise practitioners to perform within the bounds of their competency, training and expertise, as well as major public information campaigns and increased provider liability for non-economic damages.
OPTION 3: Strengthening the existing regulatory framework – with little or no legislative change.
OPTION 4: Restricting the title ‘surgeon’ under the National Law – either to:
- the 10 surgical specialty fields of practice approved by the Ministerial Council; or
- specialist medical practitioners with significant surgical training.
The Health Council notes ‘the potential consequences of the proposed reforms,
and the capacity of the reforms to meet the stated policy aims, must be balanced with the consequences of maintaining the status quo’.
The RIS includes both:
- a detailed cost-benefit analysis (20 pages) covering each of the four options;
- lists of key consultation questions for which it is seeking feedback from the industry and general public.
Details on how to provide a response to the Health Council’s Consultation Regulation Impact Statement can be found at
engage.vic.gov.au/medical-practitioners-use-title-surgeon-under-national-law
Health Ministers seek ‘broader data’
The Health Council also explains that Health Ministers ‘are particularly keen to broaden and deepen the empirical data that authorities currently hold to help inform decision-making’ in relation to the cosmetic surgery sector.
The practice of ‘cosmetic surgery’ by many different kinds of medical practitioners ‘represents a unique problem with the scope of the title protection provisions of the National Law’.
Health authorities are not aware of other surgical practices ‘where a similarly broad range of practitioners are operating, or of similar levels of public confusion about the competence and appropriate activity of other surgeons, because they are more clearly designated and regulated by the Medical Board and professional colleges’.
‘Cosmetic surgery’ is not a designated field of specialty under the National Law and ‘cannot therefore be regulated by the same authorities to the same degree, and to the degree expected or assumed by the public’.
Ministers therefore welcome additional data that will help substantiate:
- total expenditure in Australia on cosmetic surgical procedures, per annum and per capita, over time
- gross number of cosmetic surgical procedures performed in Australia
- popularity of particular cosmetic surgical procedures
- whether incidence of public confusion is experienced more commonly or widely in relation to cosmetic as opposed to other forms of surgery
- gross number and proportion of cosmetic surgical procedures that have adverse consequences
- associations of procedure with adverse outcomes
- proportions of adverse outcomes from procedures performed by:
- medical practitioners with advanced surgical qualifications
- medical practitioners without advanced surgical qualifications
- gross number and total and mean cost of reparative surgeries performed to address adverse cosmetic surgical outcomes
- total number and average cost of emergency procedures performed when a cosmetic surgical procedure must be abandoned to save the life of a patient
- trend data relating to gross number, range, severity and trends of complaints about cosmetic surgical procedures
- gross number of referrals for cosmetic surgical procedures for minors
- trend data that can demonstrate public awareness and use (including type) of the AHPRA public register of health practitioners
- gross number of cosmetic medical tourism trips by Australians.
