Publications

Unregulated and out of control – the cosmetic surgery industry is in desperate need of a facelift

Published on December 12, 2022

This article was written by Maddison Summerhayes.

I: INTRODUCTION

Australia has become one of the largest consumers of cosmetic surgeries in the world, with the sector doubling in size over the past 5 years.[1]

The current Australian healthcare system allows anyone with a medical license to perform cosmetic surgeries without necessarily undertaking specialised training.[2] Universal minimum standards for education, training and qualifications are non-existent in cosmetic surgery within Australia.[3] Purely aesthetic cosmetic surgery is not covered by Medicare or private health insurance and is therefore difficult to regulate and monitor as funding data is not available.[4]

Following media scrutiny of some cosmetic surgery providers, an independent review of the regulation of medical practitioners who perform cosmetic surgery was commissioned by the Australian Health Practitioner Regulation Agency (‘AHPRA’) and the Medical Board of Australia (‘the Medical Board’) in November 2021.[5]

The findings of the review were set out in a September 2022 report titled ‘Independent review of the regulation of medical practitioners who perform cosmetic surgery’ (‘the report’).[6]

Issues raised in the report include alleged:

• Serious hygiene breaches;
• Patient safety issues;
• Poor patient care;
• Unsatisfactory surgical outcomes; and
• Aggressive and inappropriate advertising.[7]

The review set out 16 recommendations to improve AHPRA and the Medical Board’s approach to the regulation of the cosmetic surgery sector.[8] AHPRA and the Medical Board accepted all 16 recommendations, which are expected to take 2-3 years to implement.[9] A $4.5 million Cosmetic Surgery Enforcement Unit will be established to implement the recommendations.[10]

This article will focus on AHPRA’s first two recommendations which relate to the endorsement of cosmetic surgeons; the difficulties faced by consumers of cosmetic surgery when selecting a practitioner; and  the proposed protection of the word ‘surgeon’ in Australian healthcare.

II: RECOMMENDATIONS 1 AND 2 – COSMETIC SURGEON ENDORSEMENT

In its report, AHPRA noted that one of the most consistent themes to arise in the review was the education, training and qualifications of practitioners undertaking cosmetic surgery.[11] As a result of this, the first two recommendations made by the review were that:

1. The Medical Board seek to establish an area of practice endorsement for cosmetic surgery.
2. If an area of practice endorsement is approved for cosmetic surgery, Ahpra and the Medical Board, in consultation with other stakeholders, undertake a public education campaign to assist consumers to understand the significance of an endorsement.[12]

An endorsement recognises that a person has an extended scope of practice in a particular area because they have obtained a Medical Board approved qualification.[13] The review proposed that the Australian Medical Council develop and consult on a minimum criterion that clinicians must meet in order to practice cosmetic surgery.[14]

Currently, the Medical Board places the responsibility on individual medical practitioners to decide whether they are practising within their skills, knowledge and competence without reference to minimum standards.[15] Universal minimum standards for education and training (save for qualification to practice as a medical practitioner) are non-existent in Australia.[16] It is therefore possible for any medical practitioner to offer cosmetic surgical procedures without having undergone additional training or obtained supervised experience.[17]

There has already been some professional and media scrutiny following the release of the report and the proposal of an endorsement regime, as to whether such a regime would be appropriate. Associate Professor Nicola Dean (the president of the Australian Society of Plastic Surgeons) said ‘endorsed training for cosmetic surgery, as recommended by the review, would be inadequate for the kind of procedures cosmetic surgeons are doing’.[18] The Sydney Morning Herald published the opinion of Dr Robert Sheen (the president of the Australasian Society of Aesthetic Plastic Surgeons) that he deemed the plan as a ‘reckless, irresponsible proposal’.[19] Dr Sheen expressed concern that the endorsement regime would flood the market with yet another class of cosmetic cowboy.[20] The president of the Royal Australasian College of Surgeons Dr Sally Langley said that only properly qualified surgeons who undertake at least eight years of study in conjunction with a medical degree should be performing surgical procedures.[21]

III: DIFFICULTIES FACED BY CONSUMERS WHEN SELECTING A COSMETIC SURGEON

Currently, consumers are left on their own when selecting a practitioner to perform cosmetic surgery.[22] Medicare item numbers are not available for purely aesthetic cosmetic surgery and therefore, general practitioners are not involved in treatment or specialist cosmetic surgeon recommendations.[23] Patients are therefore left to select their surgeon without a referral from a GP and are at the mercy of advertising and marketing material which includes various titles and qualifications that may not make clear what constitutes a competent practitioner.[24]

The endorsement model proposed in recommendations 1 and 2 aims to make it easy for consumers to identify practitioners who have an endorsement as that endorsement would be listed on AHPRA’s public register.[25]

As pointed out by Bill Madden in a podcast titled ‘Botox Gone Wrong with Medical Litigators Bill Madden & Justine Anderson’, currently, there is more than one kind of medical practitioner who practice cosmetic surgery.[26] Presently, there appear to be four categories of cosmetic surgeon to choose from:

1. The first category are doctors who are members of the Australasian Society of Aesthetic Plastic Surgeons and/or the Australian Society of Plastic Surgeons. Members of these societies must have received Australian Medical Council (‘AMC’) accredited training in plastic and reconstructive surgery through the Royal Australian College of Surgeons (‘RACS’). RACS was first accredited by the AMC in 2001 and remains so.[27] This distinction is only awarded to specialist surgeons who have completed a minimum of 12 years surgical training beyond their medical degree.[28]
2. The second category are doctors who are a members of the Australian College of Cosmetic Surgery and Medicine (ACCSM). ACCSM has existed for more than 30 years but is not Australian Medical Council accredited, but it does provide a training pathway for doctors in cosmetic surgery.[29] The surgical program offered by ACCSM provides two years of advanced training in cosmetic surgery.[30]
3. The third category are doctors who have separate specialist training and credentials in another field, but who practice cosmetic surgery. For example, Dr Daniel Lanzer, who is no longer registered, has specialist dermatologist credentials.[31] Dr Daniel Aronov completed generalised practitioner training and was performing cosmetic surgery (he was subsequently restricted from performing cosmetic surgery).[32] These doctors may or may not be a part of ACCSM mentioned in category two.
4. The fourth category are doctors who only possess a Bachelor of Medicine and Bachelor of Surgery, but no further specialised training.

Confusion arises for consumers when attempting to navigate and understand the differences between these four categories of cosmetic surgeon. Even the review was unable to make findings about the suitability or unsuitability for cosmetic surgery practice of any existing qualifications.[33] Medical practitioners who fall within the first category appear to have considerably more education, experience and qualifications in surgery than the second, third and fourth.

The onus is presently on the consumer to investigate what qualifications a potential cosmetic surgeon may have and a considerable amount of research and assumed knowledge is required.

AHPRA’s ‘endorsement’ strategy has the potential to confuse consumers even more by adding yet another qualification to the mix. However, recommendation 2 requires AHPRA and the Medical Board to educate the public to assist consumers to understand the significance of the endorsement.[34] It will be interesting to see how AHPRA and the Medical Board achieve this recommendation.

IV: PROTECTION OF THE WORD ‘SURGEON’

Currently, only ‘specialised surgeon’ titles are protected, such as ‘specialist plastic surgeon’.[35] The word ‘surgeon’ alone is not protected under the Health Practitioner Regulation National Law 2009 (NSW) (‘National Law’).[36] The use of the title ‘cosmetic surgeon’ is therefore not in breach of the provisions in the National Law.[37]

There were many submissions to the review to prevent non-specialist surgeons from using the term ‘surgeon’.[38] The review chose not to comment on the debate and found that the title protection alone would not provide enough clarity or sufficient protection to the public.[39]

The review made the point that medical practitioners who do not hold specialist registration must not ‘hold themselves out’ as a registered specialist surgeon in a recognised specialty.[40] However, there appears to be a loophole for medical practitioners who perform cosmetic surgery. Cosmetic surgery is not considered a recognised specialty.[41] Therefore, a practitioner calling themselves a ‘cosmetic surgeon’ is not considered holding themselves out to be a registered specialist.

In the report, the protection of the word ‘surgeon’ was said to be currently under consideration by the Ministerial Council.[42] However, AHPRA and the Medical Board stated that this issue was ‘outside the scope of the review’.[43] AHPRA and the Medical Board said they would welcome any action by the state health ministers to protect the title of surgeons under law.[44] This shift of responsibility from AHPRA and the Medical Board is disheartening as there was potential to clear up the already confusing system. Some have criticised this passive approach by AHPRA and called for more assertive action.[45] Associate Professor Nicola Dean questioned ‘Why are AHPRA not asking for this?’.[46] AHPRA has faced criticism in that they did not call for change but merely ‘welcomed’ any action by the state health ministers.

V: RECOMMENDATION

The cosmetic surgery industry is rapidly growing in Australia.[47] Cosmetic surgery is a consumer driven medicine.[48] It is the responsibility of AHPRA and the Medical Board to protect consumers of medical treatment. It is Professor Dean’s opinion that ‘Australians expect… that only properly trained surgeons are allowed to do surgery and unfortunately at the moment that’s not the case’.[49] It should not be the onus of the patient to distinguish a properly trained surgeon from an inadequately trained surgeon. AHPRA and the Medical Council should enter the debate into whether the title ‘surgeon’ should be protected to make a clear distinction between practitioners who have undertaken extensive training accredited by the AMC from those who have not.

It would be useful for there to be one standalone standard for all cosmetic surgeons. The endorsement model has potential. However, the endorsement model may simply create yet another category of medical practitioner and thus continue to confuse consumers. The Australian Society of Aesthetic Plastic Surgeons argue that any minimum standards for cosmetic surgery should be based on the pathway through the AMC accredited training through RACS.[50] Perhaps AHPRA should determine that the endorsement model should be consistent with AMC accredited training and education and raise the current standard required of those who want to practice cosmetic surgery.

VI: CONCLUSION

The cosmetic surgery industry shows no sign of slowing down any time soon. AHPRA and the Medical Board have taken action through the review and their subsequent report. It will be interesting to see how the recommendations are implemented over the next two to three years and whether AHPRA responds to the criticisms that have been made of the proposed endorsement regime.

AHPRA and the Medical Board have identified the many issues faced within the cosmetic surgery industry and have a responsibility to take action. The onus should not be on the consumer, but on the regulators to clear the waters and make it easier for consumers to access safe and competent care when undergoing cosmetic surgery.

 

Please contact Maddison Summerhayes, Lawyer on 02 8226 7395 or Robert Algie, Partner on 02 8661 0211 who can assist with your personal injury matter.

 

BIBLIOGRAPHY

A: Articles/Books/Reports

Australian Health Practitioner Regulation Agency and the Medical Board of Australia, ‘Independent review of the regulation of medical practitioners who perform cosmetic surgery’, Report (1 September 2022)

Australian Medical Council Limited, ‘Accreditation Report: The Training and Education Programs of the Royal Australasian College of Surgeons’, Report (November 2021)

B: Legislation

Health Practitioner Regulation National Law 2009 (NSW)

C: Other

Australasian College of Cosmetic Surgery and Medicine, ‘Training Program – Surgery’ accsm.org.au (Webpage, 2022) <https://www.accsm.org.au/surgery-training>

Australasian Society of Aesthetic Plastic Surgeons, ‘Who We Are’ aestheticplasticsurgeons.org.au (Webpage, 2022) <https://aestheticplasticsurgeons.org.au/asaps-who-we-are/> & Australian Society of Plastic Surgeons ‘About ASPS’ plasticsurgery.org.au (Webpage, 2022) < https://plasticsurgery.org.au/about-asps/>

Botox Gone Wrong with Medical Litigators Bill Madden & Justine Anderson’, The Lawfluent Podcast (Episode 5, Isabella Elena Carrozzi, 2022)

Daniel, Dana, ‘Regulator announces cosmetic surgery crackdown but won’t hit pause on $1.4b industry’, The Sydney Morning Herald (Online. 1 September 2022) <https://www.smh.com.au/politics/federal/regulator-announces-cosmetic-surgery-crackdown-but-won-t-hit-pause-on-1-4bn-industry-20220831-p5be4t.html>

Dr Vukasin, Filip, ‘Review recommends ‘endorsement model’ for cosmetic surgeons’, The Royal Australian College of General Practitioners – news GP (online, 1 September 2022)

Ferguson, Adele, ‘Please don’t kill me: Elite soldier feared for his life after cosmetic surgeon cut him open’ The Sydney Morning Herald (Online, 21 August 2022) <https://www.smh.com.au/national/please-don-t-kill-me-elite-soldier-feared-for-his-life-after-cosmetic-surgeon-cut-him-open-20220817-p5baim.html>

Payne, Holly, ‘AHPRA’s cosmetic sheriffs start rounding up cowboys’, Medical Republic (Online, 9 November 2022) < https://medicalrepublic.com.au/ahpras-cosmetic-sheriffs-start-rounding-up-cowboys/80930>

Timms, Penny, Katherine Gregory and Loretta Florance, ‘Medical regulator AHPRA to act on rogue cosmetic surgeons, but will it protect patients?’ ABC News (Online, 2 September 2022) <https://www.abc.net.au/news/2022-09-01/ahpra-accepts-16-recommendations-on-cosmetic-surgeons/101387624>