Plastic surgeons Dr Peter Callan and Dr Simone Matousek have lost their case to overturn new industry guidelines by Ahpra and the Medical Board of Australia.
A landmark legal challenge, led by plastic surgeons Dr Peter Callan and Dr Simone Matousek, has lost its bid to overturn new guidelines implemented by the Medical Board of Australia and Ahpra aimed at addressing ‘cosmetic cowboys’ in the booming cosmetic surgery sector.
The case, Callan v Medical Board of Australia, was heard on 2 April 2024 in the NSW Supreme Court. The legal challenge centred on judicial review of the MBA’s decision to issue two guidelines for registered medical practitioners relating to cosmetic surgery and procedures (the 2023 Cosmetic Surgery Guidelines) and the advertising of cosmetic surgery (the 2023 Cosmetic Advertising Guidelines), collectively, the “guidelines”. The plaintiffs sought orders the guidelines be declared invalid.
Background
The legal challenge was instituted in the NSW Supreme Court in mid-October 2023 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 a group of around 30 prominent surgeons.
The group’s 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”. 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”.
“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,” they told Aesthetic Medical Practitioner earlier this year.
“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.”
As reported by the Sydney Morning Herald, during a hearing in the case last month, barrister Bret Walker SC, representing the surgeons, argued the requirement for two preoperative consultations was “utterly bureaucratic”, and the manner in which accredited plastic surgeons engaged with their patients should be left to their clinical judgment.
Barrister Noel Hutley SC, representing the medical regulator, told the court the changes were made to protect vulnerable patients. “There is a concern that because plastic surgeons are … the only specialty that can be approached other than through a GP, they might unwittingly or wittingly be approached by a person who suffers from the sorts of conditions which are all too common now, eating disorders and the like,” he said.
“If there is an obligation that the referral has to come through a GP, and preferably the usual GP, that will … protect the public and protect public confidence [in the profession].”
Callan v Medical Board of Australia – main issues
The main issues for determination were based in administrative law:
– whether the guidelines are properly characterised as rules (and not guidelines) and are therefore outside the scope of the Medical Board’s functions and powers;
– whether the guidelines were issued for an improper or unauthorised purpose; and
– whether the Medical Board failed to take into account mandatory relevant considerations, ie differences between the versions of the National Law in different jurisdictions.
Acting Justice John Griffiths dismissed the surgeons’ case, affirming the validity of the decision of the MBA to issue the guidelines, finding that they were intended to provide guidance rather than establish legally binding rules. He also noted that the protection of the public and the safety of relevant services were primary considerations in the formulation of the guidelines.
Justice Griffiths also said the surgeons had failed to show the guidelines “developed and approved for an improper or unauthorised purpose”.
“There are many features of the 2023 guidelines which indicate that their purpose was to provide guidance and not to create legally binding rules,” he said in his judgment. Further, the guidelines “strongly suggest that the protection of the public, and public confidence, and the safety of relevant services were considered”.
MBA chair Dr Anne Tonkin AO welcomed the court’s decision that the board had “used its powers appropriately in reforming cosmetic surgery to protect patients”.
“This important decision means standards in cosmetic surgery can stay high, and patients will be the winners,” she told the Sydney Morning Herald.
Meanwhile, Ahpra and the MBA have reiterated their dedication to enforcing the new guidelines, which they say have already brought about positive changes in the industry, as well as monitoring the impact of the reforms and making any necessary changes.
“In the process of developing the guidelines and lifting standards, the board had feedback that our draft guidelines went too far, and also that they didn’t go far enough. The board listened to all perspectives and set a fair, safe and reasonable bar,” said a spokesperson for Ahpra and the board.
This legal challenge adds to a series of events highlighting the recent controversy and discord surrounding the Australian cosmetic surgery industry. Sweeping changes to the industry, stemming from the ‘Independent Review of the Regulation of Medical Practitioners Who Perform Cosmetic Surgery’, have triggered an avalanche of debate as industry stakeholders brace themselves for potentially more changes to come.
