By Dr. Laura Sowden, Partner, Annabel Cheung, Lawyer and Aidan Naine, Law Graduate.

In September 2022 an Independent review of the regulation of medical practitioners who perform cosmetic surgery report was released. The AHPRA Cosmetic Surgery Hotline, launched in September 2022 and have since received over 713 calls from patients concerned about their treatment, and doctors who had to address poor outcomes. Further, AHPRA has closed 214 notifications related to cosmetic practice.  Relevant to medical practitioners and their insurers, AHPRA has since been proactively auditing cosmetic surgery advertising since September 2022 and found high rates of non-compliance.

Medical insurance claims data from NSW Health suggests that medical practitioners working in the area of cosmetic practice have a higher claims frequency, which has increased at a much higher rate over the last ten years, than the average for all insured doctors.

In July 2023 changes were made to the guidelines for advertising cosmetic procedures in Australia. These changes were made under s 39 of the Health Practitioner Regulation National Law (National Law) and apply to all forms of advertisement for both cosmetic surgery, and non-surgical cosmetic procedures.[1]

One year on, we reflect on the core guidelines below and provide key takeaways for relevant medical practitioners to note. It is an important area of focus for medical practitioners and their insurers who provide medical indemnity insurance policies, where claims may arise due to AHPRA complaints due to advertising of cosmetic procedures.

General Guidelines

Advertising of both cosmetic surgery and non-surgical cosmetic procedures should not:

1. Glamorise cosmetic procedures;
2. Minimise the complexity of a procedure;
3. Overstate results; or
4. Imply patients can achieve outcomes that are not realistic.

This is outlined in the Guidelines for registered medical practitioners who perform cosmetic surgery and procedures,[2] under s 39 of the National Law.

The general Guidelines for advertising a regulated health service[3] also apply to both.

Requirements for cosmetic surgery advertising

This is in accordance with the Guidelines for registered medical practitioners who advertise cosmetic surgery.[1]

Good advertising:

1. Is ethical, honest and responsible, and does not create an impression that is misleading;
2. Provides accurate and balanced information that can be used to make informed decisions about cosmetic surgery;
3. Describes and/or shows realistic results;
4. Presents the risks and recovery process of cosmetic surgery accurately;
5. Makes clear that outcomes will depend on the characteristics of the individual seeking surgery; and
6. Presents normal body variation positively without pathologizing normal appearance or encouraging surgery to ‘fix’ normal variations.

Advertising must:

1. clearly, accurately and accessibly include the full costs of cosmetic surgery, including consultations, anaesthesia, aftercare and any health insurance coverages;
2. provide accurate, realistic and educative information about risks;
3. be clear that patients need time, support and appropriate aftercare to recover;
4. when imagery of patients, ensure both before and after images are utilised, with no additional emphasis on the ‘after’ image;

Advertising must not:

1. exploit the vulnerabilities or insecurities of individuals to increase demand for cosmetic surgery;
2. offer incentives, gifts or inducements to encourage people to have cosmetic surgery (for example bundle packages and discounts);
3. use testimonials in print, on a website, social media or displayed within a clinic;
4. use single images representing the outcome of surgery without using the accompanying ‘before photo’;
5. use images which idealise or sexualise cosmetic surgery or are enhanced in any matter;
6. downplay recovery or mislead patients in relation to the experience of pain and recovery;
7. trivialise cosmetic surgery;
8. suggest or give the impression that cosmetic surgery is the only option for individuals who are unhappy with their appearance;
9. create unrealistic expectations of outcomes;
10. use terms such as ‘magic’, ‘art’, or ‘sculpt’
11. target people at risk, including those vulnerable to body image pressures and negative body image perceptions; and
12. target people under the age of 18.

Medical practitioners (MPs) must:

1. prioritise their duty of care to their patients over financial gain;
2. prioritise the patients’ interests, dignity and privacy ahead of marketing or advertising opportunities;
3. only advertise their specialist title if they hold a specialist registration in a recognised speciality; and
4. be honest and transparent about their experience, qualifications and competence.

Medical practitioners must not:

1. Use acronyms when referring to their titles or qualifications without explanation;
2. Use terms such as ‘magic hands’, ‘sculptor’, ‘world’s best’ and alike when advertising their services and expertise;
3. Offer incentives, gifts or inducements that would encourage people to have cosmetic surgery.

Social media guidelines:

1. While MPs do not have a responsibility for testimonials or reviews posted to third-party websites and social media, they have a responsibility to not interact with or allow testimonials to be published if they have control over it;
2. MPs have a responsibility for advertising content produced by social media influencers and ambassadors where they have entered into an arrangement with them;
3. Hashtags or algorithms on social media which may target people at risk / under 18 must not be used.
4. advertising in publications or media likely to appeal to people under 18 should be avoided; and
5. Content posted on social media should be labelled as ‘adult’.

Consequences for breach of advertising guidelines

If any person or organisation has any concerns about the advertising of a regulated health service, including cosmetic surgery, they can make an anonymous complaint to Australian Health Practitioner Regulation Agency (AHPRA).

AHPRA complaints[1] can either be made through telephone call or by completing the online form.

Once a complaint is made, AHPRA will:

1. Review the advertising concerned;
2. If the advertising is not complaint, assess and decide what to do; and
3. Take action to ensure compliance.

The first action usually taken by AHPRA, is writing to the MP to:

1. let them know their advertising breaches the National Law; and
2. require them to correct their advertising within 30 days.

If advertising is not corrected, AHPRA is then able to take the following actions on MPs[1]:

1. impose conditions on the registration of the MPs;
   1. including a restriction on advertising services;
2. take disciplinary action in a panel or tribunal;
3. prosecute, which may lead to a financial penalty.

If AHPRA decides to prosecute an MP for a breach in advertising, the following maximum financial penalties apply[1]:

1. for an individual, $5,000.00 per offence; and
2. for a body corporate, $10,000.00 per offence.

If the advertisement breach is related to unlawful use of a protected title, this is a separate offence and the below maximum penalties[1] can be enforced:

1. for an individual, $60,000.00 and/or three years imprisonment per offence; and
2. for a body corporate, $120,000.00 per offence.

Summary and takeaways

1. There is a clear change to ethical, honest and responsible advertising of cosmetic surgeries. There should be a transformation in the industry as to how advertising creates a demand for cosmetic services, unlike other health services which are usually sought for recognised health needs.
2. Medical indemnity insurers will likely have reviewed any associated increased claims numbers associated with AHPRA complaints due to the new cosmetic surgery advertising requirements. It may be that this demands attention to premium and underwriting decisions one year in. Also be aware that AHPRA has a number of easy access options for facilitating complaints which increases risk profile for certain practitioner insureds.
3. MPs must:
   1. ensure that they are reflecting good practice standards when advertising cosmetic surgery, this involves having a thorough understanding of the standards and regulations.
   2. be aware of their responsibility for adhering to the advertising guidelines set out in the National Law.
   3. review their website and social media accounts, paying attention to images used.
4. MPs should create policies and internal guidelines regarding social media marketing, this involves very careful consideration of:
   1. Uses and images of models;
   2. Expectations created when advertising;
   3. Use of social media influencers to promote procedures;
   4. The impact of the advertising on vulnerable people at the risk of body dysmorphia.
5. Medical clinics should do everything to ensure an emphasis on patient care, including through advertising.
6. Consider placing gatekeeping messages on websites asking viewers if they are over 18 years of age.
7. MPs should be aware of the various forms of consequences they can face for breaching the advertising guidelines, including the imposition of conditions on their registration, disciplinary action, financial penalties and even imprisonment in serious cases.

Footnotes:

[1] Health Practitioner Regulation National Law Act 2009 (National Law) s 39.

[1] Medical Board of Australia, Guidelines for registered medical practitioners who perform cosmetic surgery and procedures, 1 July 2023.

[1] Medical Board of Australia, Guidelines for advertising a regulated health service (Health Service Guidelines), 14 December 2020.

[1] Medical Board of Australia, Guidelines for registered medical practitioners who advertise cosmetic surgery and procedures, 1 July 2023.

[1] Health Service Guidelines pt 1.2.

[1] Health Service Guidelines pt 1.3.

[1] National Law s 133.

[1] National Law s 133.