A previous post briefly reviewed the regulation of cosmetic surgery in New South Wales.
This post reviews the decision of the NSW Civil and Administrative Tribunal in Health Care Complaints Commission v Blackstock.
Professional disciplinary complaints in NSW
First, some background. In NSW, professional disciplinary complaints against a medical practitioner can be made on a variety of grounds. These include that the practitioner:
- has been convicted of a criminal offence;
- has been guilty of “unsatisfactory professional conduct” or, more seriously, “professional misconduct”;
- is not competent to practice;
- is impaired;
- or is otherwise not suitable to hold registration (Health Practitioner Regulation National Law (NSW) No. 86A, s 144).
A complaint may be made to the Medical Council of NSW, or to the Health Care Complaints Commission (HCCC), but serious complaints – which, if substantiated, could result in suspension or cancellation of a medical practitioner’s registration – must be referred to the NSW Civil and Administrative Tribunal (s 145D).
The statutory concept of “unsatisfactory professional conduct” includes conduct that is “significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.” (s 139B(1)(a)).
S 139B(1)(a) illustrates the overlap between conduct that provides the grounds for both a professional disciplinary complaint and a medical negligence lawsuit. In separate medical negligence proceedings, one patient was awarded $204,000 for injuries sustained as a result of breast augmentation performed by Dr Blackstock.
HCCC v Blackstock is a shocking case.
Dr Blackstock’s medical registration was suspended in 2017, and the matters that were the basis for the suspension were referred to the Health Care Complaints Commission, which filed complaints against Dr Blackstock in the Civil and Administrative Tribunal, claiming that he was guilty of unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).
In July 2019, Dr Blackstock was convicted and fined $255,000 for carrying out breast reconstruction surgeries at the Enhance Clinic in Penrith, in breach of the Private Health Facilities Act 2007 (NSW).
Under s 139C, certain kinds of criminal convictions may constitute unsatisfactory professional conduct.
Health Care Complaints Commission v Blackstock
Accordingly, the first ground of complaint brought by the HCCC was that Dr Blackstock had been convicted of criminal offences for performing surgery at unlicensed premises.
The second complaint was more complex, and related to inadequate, incompetent and outrageous practices by Dr Blackstock.
The patients’ statements were unchallenged.
Dr Blackstock,who was a general practitioner, failed to disclose the risks of breast augmentation surgery to his patients, and although they typically signed long consent forms, there was no chance to discuss them, and in some cases they did so after having been sedated.
Dr Blackstock was also a director and shareholder of a finance company that helped to finance the surgery for the women, who were described by the Tribunal as “young women with concerns about their body image, who travelled from interstate for their surgery and were influenced by the practitioner’s website” [85].
These patients had no pre-operative consultation, and no attempt was made prior to the surgery to actually find out the size of the implant that the patient wanted, or that was appropriate.
Instead, Dr Blackstock had adopted the practice of waking and sitting his patients up midway through the procedure – after they had been sedated with liquid Valium – to ask them if they were happy with the size.
“Patient F relates what she perceived as a slap on her face during the surgery, that the practitioner sat her up and said “they’re a bit far apart”. She relates that “I did not know what he was asking me or what he was doing” [97].
“Patient FF reports the practitioner sitting her up during her surgery and asking her if she ‘wanted to go bigger’ and after saying she wanted to be natural she was laid back down” [98].
The HCCC’s expert witness, Dr Bezic, unsurprisingly, was highly critical of this practice, pointing out that the patients were heavily sedated, unable to make an informed choice, and risked contaminating the sterile field.
Worse still, Dr Blackstock sometimes invited parents, boyfriends, and friends into the operating theatre to ask their opinion about the patient’s implants. This created the risk of infection, a risk that the visitors would experience a vasovagal episode, as well as being a gross breach of privacy.
In the case of Patient H, a 47 year-old woman who had travelled from Tasmania, Dr Blackstock contacted the patient’s partner on Facetime during the surgery to ask him whether to leave the patient’s implant in place or to replace it [203].
Patient E received breast augmentation and labiaplasty at the same time. Dr Blackstock asked her if she wanted to see the flesh he had cut from her labia and as he did so he said “oh, that’s a lot”. The Tribunal described this behavior as “abhorrent and grossly unprofessional” [187].
Patients were discharged rapidly after the surgery was completed. Patient B left approximately 20 minutes after her surgery [107]. Multiple patients experienced pain and complications and had to seek help from their GPs, or were admitted to hospital. Patient J removed the implant from her left breast herself following infection, and was then admitted to hospital in Newcastle [235].
The surgeries were poorly performed. Patient C was discharged 44 minutes after the procedure [127]. One week later, Patient C took her bra off and the wound popped open [109]. When she went back to Dr Blackstock, he operated on her in her day clothes, without sedation, leaving her in excruciating pain [110].
In a number of cases multiple surgeries were performed as a result of complications with the initial surgery. Patient J’s wound became infected after her first surgery. The infection continued for over a year [280].
Patient J’s second, third and fourth surgeries involved Dr Blackstock removing the breast implant, which had become infected, washing it, and re-inserting it back into the infected pocket [289],[295].
The HCCC’s expert said that these repeated surgeries were “indefensible” [316], and that Dr Blackstock should have removed the implant after the first evidence of wound breakdown [291],[295],[298].
The Tribunal dismissed the submission from Dr Blackstock that since he did not intend to practice again, he should not be found to have committed professional misconduct [323].
“What is relevant in our view”, said the Tribunal, “is that the Tribunal’s orders reflect the seriousness with which we regard this practitioner’s conduct, and ensure that the public is protected from him or other practitioners engaging in similar conduct. Our orders are also intended to have a general deterrent effect” [323].
There has been a lot of media about Dr Blackstock, and you can go online and see videos of some of his patients talking about their experiences.
Dr Blackstock was a GP without specialist surgical training, and that was part of the problem.
In Australia, the words “bank” and “banker” are restricted words, and penalties apply for using them without authorisation from APRA, the Australian Prudential Regulation Authority. These limitations help to ensure the confidence in banks and in other financial institutions that is necessary for the financial stability of Australia’s banking system.
Perhaps it’s time that APHRA – the Australian Health Practitioner Regulation Agency – was tasked to play a similar role in authorising the use of the term “cosmetic surgeon”, in order to better protect the health and safety of those undergoing cosmetic surgical procedures.
The Tribunal found that the cumulative impact of Dr Blackstock’s conduct was sufficient to establish professional misconduct justifying the cancellation of his practitioner’s registration.
Acting under s 149C, the Tribunal cancelled his registration for 7 years.
Are you interested in studying health law? Sydney Law School offers a Graduate Diploma and a Master of Health law. See here, and here for further information.
Sydney Health Law 
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