Who’s the best doctor for a tummy tuck or eyelid surgery? The latest review doesn’t actually say

This article, co-authored with Professor Cameron Stewart, was originally published in The Conversation.

If you’re thinking about a tummy tuck, breast implants or eyelid surgery, you might be looking for reassurance your chosen doctor is qualified and has the right skills for the job.

Today’s release of the much anticipated review of how cosmetic surgery is regulated in Australia goes partway to achieving that.

The review makes several sensible suggestions about how to protect consumers, following allegations around cosmetic surgery practices aired in the media (which prompted the review in the first place).

There’s much to commend. The review is comprehensive, sober, realistic and the product of considerable consultation.

It recommends tightening up how cosmetic surgery is advertised, streamlining how to complain when things go wrong, and improving how complaints are managed.

However, these recommendations and others, which the health professionals’ regulator accepts, are unlikely to be implemented right away. Such reforms take time.

Recommendations to identify who has the appropriate education and skills to perform cosmetic surgery – a GP with or without extra surgical qualifications, a specialist plastic surgeon, or doctors with other titles – may take time to finalise and determine.

That’s because plans to identify certain doctors as “endorsed” practitioners – effectively validating their ability to competently perform cosmetic surgery – hinge on the medical board identifying and approving what skills and education will be needed.

Any relevant course or training program would also need to be accepted by the Australian Medical Council (which looks after doctors’ education, training and assessment).

Here’s what needs to happen next to protect health consumers.

Photo by Joey Lee

Remind me, what’s the review about?

Over the past few years, the media has reported on allegations people had undergone inappropriate or unsafe cosmetic surgeries and were turning up to hospitals for remedial surgery.

Critics said people had been enticed by deceptive social media advertising and had trusted “inadequately trained” cosmetic surgeons to care for them. But they were never adequately warned of the risks.

The Report is available here.

Facing what threatened to become a crisis of regulatory confidence, the Australian Health Practitioner Regulation Agency or AHPRA (and its medical board) was bound to act. It commissioned an independent review of doctors who perform cosmetic surgery in Australia.

What did the review recommend?

The review examined “cosmetic surgeries” in which the skin is cut, such as breast implants and abdominoplasties (tummy tucks). It didn’t cover injections (such as Botox or dermal fillers) or laser skin treatments.

It makes several significant recommendations.

1. Cosmetic surgeons need to be “endorsed”

A new system would see doctors “endorsed” as a cosmetic surgeon with AHPRA. This “blue tick” style of endorsement would only be given to those who had met a yet-to-be determined minimum educational standard.

Once rolled out, however, consumers would be educated to look for this endorsement on the publicly available register of health professionals.

2. Making complaints will be simpler

There are currently several avenues for making complaints about cosmetic surgeons, including to AHPRA itself, to the medical board (within AHPRA), as well as to state-based health-care complaints agencies.

The review recommends new educational materials be produced to show consumers exactly how and when to complain about cosmetic surgeons. It also recommends a special consumer hotline be created to provide further information.

3. Stricter rules on advertising

The review recommends tightening up existing advertising guidelines to strictly control those who promote cosmetic surgery health services, particularly advertising that might:

  • glamourise or trivialise risky procedures
  • use models who have not had cosmetic surgery to sell a cosmetic procedure
  • use social media influencers
  • suggest cosmetic surgery be used to obtain an “acceptable” or “ideal body type”.

4. More scrutiny, more policing

Finally, the review recommends sharpening policies about how health professionals obtain informed consent for procedures, the importance of postoperative care, and the expected training and education of cosmetic surgeons.

The review also recommends AHPRA create a specific cosmetic surgery enforcement unit to regulate doctors providing these services.

Such an enforcement unit might refer problematic doctors to the medical board, which could then determine whether immediate disciplinary action was necessary. This might mean the immediate suspension of their registration (“medical licence”).

Photo by Philippe Spitalier

Will these reforms work?

The Royal Australasian College of Surgeons and the Australasian Society of Aesthetic Plastic Surgeons have said the suggested reforms are inadequate and may even lead to some doctors being endorsed when they lack appropriate training.

Another possible reform rejected by the review was to make the title “surgeon” a protected title. This could then only be used by those who have done years of specialist training.

Indeed, Australian health ministers are currently examining this very issue.

Currently, any doctor can call themselves a “cosmetic surgeon”. But since “plastic surgeon” is a protected title, only those with specialist training can use it.

Others doubt whether the enhanced regulation of titles will in fact improve safety. After all, a title is no guarantee of safety, and there may be unintended consequences too, such as the inadvertent creation of a market monopoly.

This has been a long time coming

Today’s review is the latest in a long line of reviews of medical practice involving cosmetic procedures over the past 20 years. Until now, no reforms have been able to sustain long-lasting improvements in outcomes or reduce numbers of complaints.

These recurrent scandals and the regulatory stagnation reflects the fractured nature of Australia’s cosmetic surgery industry – with its longstanding turf wars between plastic surgeons and cosmetic surgeons.

But this is also a multimillion-dollar industry that has historically been unable to agree on a set of standards for education and training.

In the end, for this review to catalyse meaningful reform, the next task will be for AHPRA to reach professional consensus about the standards to be set for cosmetic surgery. With some luck, the endorsement model may have the required impact.

It’s a huge challenge, but an important one. After all, regulators who try to impose standards from above without the support of professional consensus face an incredibly difficult task.

Reckless, incompetent, outrageous: rogue doctors performing cosmetic surgery still a problem in NSW

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.

Improving safety for patients undergoing cosmetic surgery in NSW

If you’ve ever had work done, or thought about it, the decision of the NSW Civil and Administrative Tribunal in Health Care Complains Commission v Blackstock should send a shiver down your spine.

This case is a powerful reminder of how behaviour that constitutes professional misconduct can give rise to professional sanctions, criminal liability, and civil liability for medical negligence.

HCCC v Blackstock will be reviewed in the following post. This post briefly reviews how cosmetic surgery is regulated in Australia.

Cosmetic surgical procedures include rhinoplasty (a “nose job”), breast augmentation or reduction, face lifts and liposuction.

Examples of minor cosmetic medical procedures include laser skin treatments, mole removal, laser hair removal, chemical peels, and hair replacement therapy.

What is a “cosmetic surgeon”?

Cosmetic surgery is not a recognised speciality overseen by a specialist college that controls entry and training. Rather, rival professional bodies train and represent members who perform cosmetic surgical procedures.

On the one hand, members of the Australian Society of Plastic Surgeons are required to hold a specialist qualification from the Royal Australasian College of Surgeons and to have completed at least 12 years of medical and surgical training, including a minimum 5 years of specialist surgical training.

By contrast, the Australasian College of Cosmetic Surgery is a multidisciplinary body that provides specialist training to doctors who have graduated more than 5 years ago and have 3 years of experience in a surgical environment.

Plastic surgery is a recognised field of specialist medical practice approved by the Council of Australian Governments (COAG) Health Council under the Health Practitioner Regulation National Law (for NSW, see s. 13(2)). Training is overseen by the Board of Plastic and Reconstructive Surgery of the Royal Australasian College of Surgeons (RACS). Medical practitioners who have completed the relevant period of training (and been assessed by a specialist college accredited by the Australian Medical Council) and met other eligibility requirements, can apply to the Medical Board of Australia for registration.

Plastic surgeons are trained to practice both plastic and reconstructive surgery (the Australasian Society of Aesthetic Plastic Surgeons represents those with a particular focus on cosmetic surgery). “Specialist plastic surgeon” is a protected specialist title and offences apply under the National Law for unauthorised use of a specialist title by someone not registered in the relevant speciality (ss 113, 117-118).

No such restrictions apply to the use of the term “cosmetic surgeon”. Unlike a specialist plastic surgeon, a “cosmetic surgeon” does not need to be a Fellow of the Royal Australasian College of Surgeons: see here, and here.

Strengthening regulation of cosmetic surgery: five pillars

In 2010, the Australian Health Ministers Council endorsed a report entitled Cosmetic medical and surgical procedures – a national framework (AHMAC 2011).

In this report, the Australian Health Ministers Advisory Council called for a national framework based on 5 pillars.

You can look at these 5 pillars as the relevant areas of practice that would need to be regulated if you were to regulate cosmetic surgery and procedures effectively.

The 5 pillars are:

  • Regulation of practitioner registration;
  • Licensing of private health facilities where cosmetic procedures take place;
  • Implementation of infection control measures;
  • Regulation of some of the devices and substances used in cosmetic procedures;
  • Consumer legislation, including specific legislative protections for children.

This report also called on the Medical Board of Australia to supplement its code of ethical practice (Good Medical Practice: a code of conduct for doctors in Australia) with additional guidelines governing cosmetic surgery for adults and children.

Following a long gestation period, in 2016 the Medical Board released Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures.

Some of the most important features of these guidelines include the requirement for at least a 7 day cooling off period between the time an adult is given information about cosmetic medical or surgical procedures (and gives their informed consent), and the time the procedure is carried out (para 2.5).

For major cosmetic surgical procedures on a patient under the age of 18, there is a 3 month cooling off period, and the patient must be referred to an independent “psychologist, psychiatrist or GP” for assessment to determine whether any psychological factors make them an unsuitable candidate for the procedure (para 3.4).

There is also a 7 day cooling off period for cosmetic medical procedures performed on minors.

If the procedure involves sedation, anaesthesia or analgesia, the medical practitioner performing the procedure must ensure that there are trained staff, facilities and equipment to deal with emergencies, including resuscitation.

It’s worth noting, however, that the Guidelines left two areas untouched.

Firstly, they don’t impose requirements for the training, certification or registration of medical practitioners who perform cosmetic surgical procedures.

Nor did they impose requirements about the facility in which cosmetic surgery is performed.

Both areas would appear to be highlighted by the subsequent case of a Chinese tourist who was charged with manslaughter in September 2017 over the death of a beauty clinic owner in Chippendale. The owner, Jean Huang, asked Jie Shao, a Chinese medical graduate and specialist in dermatology who had practiced in China and Britain, to insert breast fillers under local anaesthetic.

Jie Shao was in Australia on a tourist visa. Ms Huang died several days after the procedure, apparently due to the amounts of anesthetic administered to her. Ms Shao was subsequently charged with manslaughter.

NSW Health review of regulation of cosmetic procedures

As a result of this tragic death, the NSW Government carried out a review of cosmetic procedures.

The report, available here, makes 9 recommendations about how to safeguard patients undergoing surgical and medical cosmetic procedures.

Prior to the review, regulations already required that a private health facility at which cosmetic surgical procedures (as defined in s. 3) are carried out must be licensed under the cosmetic surgery class and comply with the licensing standards for that class (Private Health Facilities Regulation 2017 (NSW) ss 4-6 & Schedule 1, Schedule 2 (Part 5)).

Following the review, the regulations were strengthened to create an offence for a medical practitioner who performs cosmetic surgery in an unlicensed facility (see here and here).

Another recommendation was that the Minister raise the issue of protecting the title “cosmetic surgeon” with the Council of Australian Governments (COAG) Health Council (see here, p 9)

In November 2019, the COAG Health Council “agreed to progress changes to restrict the use of the title ‘surgeon'”, including by self-described “cosmetic surgeons”.

A letter from the federal Health Minister confirms that further consultation with medical and consumer organisations will be required to determine which medical practitioners should be permitted to describe themselves as a “surgeon”.

Following Health Care Complaints Commission v Blackstock, the case for restricting the performance of cosmetic surgical procedures, such as breast augmentation, by non-surgically trained proceduralists offering “bargain basement” deals, appears clearer than ever.  Greater restrictions over the use of the term “surgeon” and “cosmetic surgeon” are long overdue.