The long-awaited report on the regulation of health practitioners who perform cosmetic procedures is out – and despite expectations it could accelerate the removal of the prohibition on the use of testimonials in advertisements of regulated health services, an industry backlash brings uncertainty. In this insight, we explain the background to the proposed regulatory change, the findings of the independent review, and what it means for the regulated health services industry.
Introduction
In July 2022, we reported on the Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (the Bill) which proposes a lift of the ban on the use of testimonials in advertisements of regulated health services.
In July, the Queensland Parliamentary Committee [1] (Parliamentary Committee) recommended passing the Bill but delaying repeal of the prohibition on the use of testimonials in advertising until the completion of the independent review of the regulation of health practitioners who perform cosmetic procedures (the Report) and the publication of guidelines and educational materials on the appropriate use of testimonials by the Australian Health Practitioner Regulation Authority (AHPRA).
AHPRA published the long-awaited Report earlier today. In theory, publication of the Report should edge health practitioners and businesses that provide regulated health services closer to being able to use testimonials in health service advertising. While the Report has attracted strong criticism from industry even before its official publication, and a petition was recently tabled in the Queensland Parliament petitioning Ministers to not pass the Bill, the recommendations in the Report may address at least some stakeholder concerns that were submitted to the Parliamentary Committee overseeing the Bill. The Bill has yet to go to a second reading debate which is likely to be influenced by the findings and recommendations outlined in the Report.
The Report sets out the Independent Reviewer’s findings and recommendations alongside AHPRA and the Medical Board of Australia’s (MBA) response. Read further for a summary of the Report as it relates to advertisements of regulated health services.
Background
The independent review was commissioned by AHPRA and the MBA on 30 November 2021 in response to concerns surrounding the rapid growth of the cosmetic surgery industry and practices and methods of promotion that are thought to pose safety concerns for patients. The purpose of the review was to ensure that AHPRA and the MBA’s regulation of practitioners has kept pace with rapid changes in the cosmetic surgery industry.
The Report focused on:
- the regulatory role of AHPRA and the MBA
- collaboration between AHPRA and other regulators to delineate roles, responsibilities, and information flow
- how to strengthen the safety reporting culture within the cosmetic surgery industry
- how to reduce information asymmetry for consumers to support safer choices and informed consent
- review the current risks to patient safety and how they should inform the work of AHPRA and the MBA
Significance for the National Law
The Bill, if passed, will remove the ban on the use of testimonials in advertisements of regulated health services from the Health Practitioner Regulation National Law (National Law). In submissions to the Parliamentary Committee, stakeholders expressed concerns that lifting the ban on testimonials would further exacerbate marketing practices that are the subject of the Report. However, on 1 July 2022, the Parliamentary Committee recommended the Bill be passed (subject to delaying commencement of the provision repealing the prohibition on testimonials until completion of the Report and publication of AHPRA guidelines and educational materials).
A petition for the Bill to be rejected was tabled on 30 August 2022 with a total of 5,677 signatures. A response to the petition is due on 29 September 2022. The Bill has yet to be considered at a second reading debate.
Findings
The Report addresses the following issues:
- education, training, and qualifications
- management of notifications
- advertising regulation; and
- influencing practice.
Our analysis focuses on education, training and qualifications and advertising regulation. The full report can be accessed here.
Advertising regulation generally
The Report identifies that because of its elective nature, advertising of cosmetic procedures poses unique risks that are not present in the advertising of other areas of medical practice. Specifically, the Report addresses the use of social media in reaching and influencing consumer choice.
The Report is primarily concerned with advertising that employs marketing tactics that may mislead consumers, undermine a consumer’s ability to make an informed decision or encourage consumers to undergo procedures that are unnecessary. While the National Law prohibits advertisements that ‘directly or indirectly encourages the […] unnecessary use of regulated health services’, the Report notes that it is not currently clear whether this ban applies to all cosmetic procedures (that is elective and for aesthetic purposes). The Report suggests that the terms ‘directly or indirectly encourages’ captures a broad range of activity, and the term ‘unnecessary’ means unessential. In the context of elective cosmetic procedures, procedures may well be considered ‘unnecessary’ (and therefore would be prohibited). The Report acknowledges arguments by proponents that cosmetic procedures can have necessary psychological benefits, however these benefits are not supported by clear evidence. AHPRA has accepted the recommendation that it seek legal advice in relation to the application of this prohibition. We anticipate that AHPRA will update its advertising guidance based on that advice.
The Report is also critical of AHPRA and the MBA’s responses to high-risk advertising and recommends a more enforcement-based approach to the regulation of practitioners who are knowingly and intentionally “flaunting” advertising requirements. Additionally, AHPRA’s proactive auditing of medical practitioners was found to be focused on a limited number of practitioners and not specifically targeted to the high-risk cosmetic surgery industry generally. The Report acknowledges the increasing number of platforms that require monitoring and the finite resources available to the regulator but finds that more could be done to address egregious cases of prohibited advertising.
A review of existing guidelines published by AHPRA and the MBA, which apply to advertising of regulated health services, were found to be limited to explaining the operation of the offence provisions under the National Law and do not adequately set out the minimum standards expected of practitioners and general community expectations.
Testimonials
The Report addressed the Bill and the proposed amendment to lift the ban on testimonials in advertisements of regulated health services. The Report’s observations about testimonials are limited to the cosmetic surgery industry and include:
- concern that testimonials have the potential to further contribute to misunderstanding and confusion among consumers
- concern that regulating and responding to the use of testimonials is likely to add to AHPRA’s regulatory burden and additional resourcing will be required to enable review of testimonials, monitoring and auditing and responding to complaints
- the importance of educational and guidance materials with specific examples of appropriate use of testimonials, should the amendment pass
- that AHPRA should discourage the use of testimonials by practitioners in the cosmetic surgery industry until recommendations in the Report have been progressed.
Education, Training and Qualifications
The Report found that there is no minimum standard for education, training, and qualifications for cosmetic surgeons in Australia. As a result, consumers are led by descriptions of qualifications in advertising and marketing material when selecting a practitioner to perform cosmetic procedures.
The Report recognises the complexity of the issue that is due to the current regulations being based on a title protection model (i.e., the titles practitioners are allowed to use) rather than an endorsement model (i.e., what a practitioner is qualified to practice).
As cosmetic surgery is not currently a recognised medical specialty, the restriction on practitioners ‘holding themselves out’ as a specialist or having particular qualifications to practice cosmetic surgery do not apply. Furthermore, while the title ‘surgeon’ is part of several protected specialist titles (for example, Specialist Orthopaedic Surgeon), the use of ‘surgeon’ on its own is not protected by the National Law.
The Report also addresses consumer feedback which identified a lack of clarity and confusion surrounding practitioner training and qualification and a reliance on what consumers are told by the practitioner about their qualifications and experience.
Recommendations and response
The Report includes 16 recommendations, including two relating to education, training, and qualification and four relating to advertising. All 16 recommendations were accepted by AHPRA and the MBA.
To assist in addressing the recommendations raised in the Report, AHPRA announced $4.5 million will be made available to support the establishment of a Cosmetic Surgery Enforcement Unit (the Unit). A summary of how the Unit will address recommendations raised in the Report is outlined in the chart, below.
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RECOMMENDATIONEducation, training, and qualifications |
AHPRA/MBA RESPONSE |
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1
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Establishment of an ‘area of practice’ endorsement for cosmetic surgery |
AHPRA and the MBA will introduce an ‘area of practice’ endorsement in cosmetic surgery. A doctor’s registration on the public register will show if they have met the required standards for cosmetic surgery that will be set by the Australian Medical Council and the MBA. If the National Law is amended [2] to introduce a protected title of ‘Surgeon’, then only doctors with particular accreditation would be permitted to use the title ‘cosmetic surgeon’. |
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2
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If an ‘area of practice’ endorsement is approved, AHPRA and the MBA, in consultation with stakeholders, should undertake a public education campaign to assist consumers to understand the significance of the endorsement. |
Recommendation accepted |
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RECOMMENDATIONAdvertising regulation A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
AHPRA/MBA RESPONSEA national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
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9
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Further consider the extent to which the prohibition on advertising that encourages the ‘indiscriminate or unnecessary’ use of health services prohibits advertising of cosmetic surgery. A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
Recommendation accepted A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
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10
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AHPRA and the MBA review approach to regulation of advertising in the cosmetic sector including by:
A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
Recommendation accepted A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
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11
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AHPRA and the MBA to revise the Advertising Guidelines and/or produce additional material specifically about cosmetic procedures to clarify the standards expected of practitioners (including specific examples of inappropriate content or approaches) by addressing the need to:
A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
AHPRA and the MBA have committed to enforcing a ban on testimonials that mislead and deceive consumers and trivialise risk, by cracking down on advertising and social media used to promote cosmetic surgery and to update and enforce advertising restrictions A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
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12
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AHPRA and the MBA to consider the use of technology to assist in the monitoring/ auditing of advertising in the sector. A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
AHPRA and the MBA will use new technologies to audit social media, backed by tougher regulatory action A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
A national consultation into the use of the title ‘surgeon’, including ‘cosmetic surgeon’ by medical practitioners under the National Law is currently underway. |
Providers of cosmetic procedures
Advertisers in the cosmetic procedure space can expect increased enforcement activity by AHPRA and the MBA. Advertisers are encouraged to review the MBA’s Guidelines for registered medical practitioners who perform cosmetic procedures, ensure advertisements are not false, misleading, or deceptive, and do not encourage unnecessary use of health care services. Advertisers should also stay abreast of AHPRA and MBA guidelines relating to advertising of cosmetic procedures and changes to education, training and qualification requirements.
Advertisers should also remember that advertisements of regulated health services are currently prohibited from using patient testimonials.
KWM will keep you informed about the progress of the Bill and the implementation of the Report’s recommendations in the coming weeks.
Queensland Parliament, Health and Environment Committee
