Legal Insights

Cosmetic medical and surgical procedures: Regulation and patient safety

By Angela Wood, Tamie Duncan-Bible & Nina Prica

• 25 May 2022 • 26 min read

We provide an update on the Independent Review of the Regulation of Health Practitioners and Patient Safety Issues in Cosmetic Surgery by AHPRA and Medical Board of Australia.

In brief

In November 2021, the Australian Health Practitioner Regulation Agency (AHPRA) and the Medical Board of Australia (Medical Board) announced an Independent Review of the Regulation of Health Practitioners and Patient Safety Issues in Cosmetic Surgery (Independent Review).

In late 2019, all Health Ministers agreed to consult with the public on the use of the title of ‘surgeon’ including ‘cosmetic surgeon’ to determine if there is widespread belief among the general public that cosmetic surgery, and the title ‘cosmetic surgeon’, are regulated in the same way as other fields of surgery.

There have been several inquiries and reviews within Australia into the use of certain titles by practitioners performing cosmetic medical and surgical procedures, patient consent and safety, advertising and marketing all which included recommendations and frameworks aimed to better protect consumers.

While this most recent review is not too dissimilar in purpose and scope from those that have come before it, this review has a specific focus on the existing regulation and regulatory practices in use by AHPRA and the relevant National Boards.

Background

Demand for cosmetic medical and surgical procedures has increased in Australia with an increase in people seeking out procedures in response to social media influence and as a way to prevent signs of ageing[1]. Advertising of cosmetic medical and surgical procedures, such as anti-ageing and anti-wrinkle treatments, is widespread on social medial platforms like Facebook, Instagram and TikTok as part of what has become a multibillion dollar market in Australia.[2]

While the role of the regulator is to protect the public, regulation of the cosmetic surgery industry has to date been largely reactive, enlivened only after a complaint is made, or a practitioner is reported to the Regulator, in most instances after an adverse event and harm to a consumer has occurred.

The pace at which the cosmetic surgery industry is growing in Australia may be considered to be outstripping the currency of the regulatory framework for health practitioners. In particular, there is concern that practitioners without relevant qualifications are using the title ‘cosmetic surgeon’ and holding themselves out as having specific qualifications, which may not always be correct. However, there is no current consensus around what qualifications are required and what specialist titles are applicable.

Current Regulatory regime

The Health Practitioner Regulation National Law is in force in each state and territory of Australia and sets out the guiding principles of the National Registration and Accreditation Scheme (National Scheme).

The main objective of the National Scheme is to protect the public by ensuring that for each registered health profession, registered practitioners are suitably trained and qualified to practice in a competent and ethical manner, following standards, codes and guidelines developed for each profession.

The current regulatory regime is a combination of Commonwealth and State legislation working together and relies heavily on health practitioners to do the right thing, by complying with the requirements of their registration, practicing within their scope of expertise in accordance with the relevant laws, standards, codes and guidelines, and for practitioners or members of the public to report those who don’t.

Prosecution of health practitioners by AHPRA shows that many individuals were holding themselves out to be appropriately registered and qualified to perform cosmetic medical and surgical procedures even though they were either not qualified or registered,[3] or their registration had been suspended or cancelled,[4] or had other regulatory actions imposed at the time of further offending.[5]

A summary of recent prosecutions by AHPRA and the Medical Board in relation to cosmetic medical and surgical procedures, at the end of this article, provides further detail.

Increased Media Focus & Previous Reviews Inquiries

The Independent Review was announced on 10 November 2021, shortly after the findings of a joint investigation by the ABC, The Age and The Sydney Morning Herald. ‘Cosmetic Cowboys’ aired on Four Corners on 25 October 2021 and several articles were subsequently published in the print media that highlighted gaps in the regulatory framework permitting practitioners with basic medical degrees to not only call themselves cosmetic surgeons, but to perform invasive procedures like face lifts and liposuction.[6]

To date, there have been several inquiries into, and reviews of, how the cosmetic surgery industry in Australia is regulated.

The NSW Committee of Inquiry into Cosmetic Surgery in 1998 was prompted by concerns about the way cosmetic procedures were promoted and the quality and safety of those procedures.[7]

The Australian Health Ministers’ Conference in 2011 and the Queensland Health Quality and Complaints Commission in 2013 both initiated an examination of the adequacy of consumer safeguards in relation to cosmetic medical and surgical procedures.[8] The Reports each identified concerns with patient safeguards and limited regulation and highlighted ongoing safety and quality concerns.

In 2016, the Medical Board of Australia issued guidelines for medical practitioners who perform medical and surgical procedures with a view to providing explicit guidance to practitioners on patient assessment and informed consent, and requirements for practitioners to provide clear information to consumers about the risks and any possible complications.[9]

More recently, the death of a woman in 2017 following an unsuccessful breast filler procedure performed by an unqualified practitioner prompted the NSW Health Care Complaints Commission to undertake an Inquiry into the Cosmetic Health Services Complaints in NSW.[10]

The findings and recommendations of these previous inquiries and reviews into the cosmetic surgery industry highlight substantially similar challenges regarding regulation of the cosmetic industry and the risks to consumers which are largely unchanged from those identified in the 1998 Cosmetic Surgery Report.

Scope of the Independent Review

The Independent Review[11] will inquire and report on:

The regulatory role of AHPRA and relevant National Boards in cosmetic surgery, with particular attention to its risk-based approach focusing on:

updating codes of conduct and supporting guidance which aim to ensure that practitioners practise safely within the scope of their qualifications, training and experience
the methodology for risk assessment of cosmetic surgery notifications
the AHPRA investigation protocol
the management of advertising offences, and
opportunities for changes, clarifications or further actions in relation to the current regulatory approach to protected titles.

What's next

Public consultations closed on 14 April 2020, and the Independent Review is expected to report its findings and recommendations in mid-2022.

Summary of recent prosecutions by AHPRA and the Medical Board in relation to cosmetic medical and surgical procedures

Case name	Date of decision	Jurisdiction	Offence prosecuted	Outcome and sentence imposed
Health Care Complaints Commission v Mooney [2021] NSWCATOD 206	10/12/21	NSW	Prosecuted for professional misconduct and unsatisfactory professional conduct in relation to the deaths of two patients (nicked an artery in one operation, and pierced the patient’s brain in the other), a relationship with a third patient and lying about his failure to attend a drug test.	Found guilty of professional misconduct and unsatisfactory professional conduct. Registration suspended for 12 months.
Health Ombudsman v Gindi [2021] QCAT 372	10/11/21	QLD	Practitioner prosecuted for professional misconduct in relation to professional skills in respect of 6 patients, clinical judgement and decision making below the standard expected – pain, poorly done surgeries.	Practitioner engaged in professional misconduct in relation to professional skills in respect of 6 patients Conditions were imposed on registration, including that they must not perform certain cosmetic surgery procedures for a period of 5 years from the date of the orders.
Medical Board of Australia v Nguyen [2021] QCAT 346	27/10/21	QLD	Practitioner prosecuted for professional misconduct. Inappropriate prescribing of medicine and inappropriate record keeping	Practitioner engaged in professional misconduct. Suspended for 4 months and then conditions imposed on registration at the expiry of the 4 month period.
Medical Board of Australia v Nadkarni [2021] WASAT 123	21/09/21	WA	Practitioner prosecuted for professional misconduct. Most serious issue was the prescribing of substances which were not therapeutically justified. Those substances included human growth hormones and testosterone. Also the practitioner failed to keep appropriate records.	Practitioner engaged in professional misconduct. Suspended for 20 months and then conditions imposed on registration at the expiry of the 20 month period.
AHPRA v Aliaa Mohammed Elmetwally Ismaeli Sherif	22/06/21	Victoria	Falsely claiming to be a medical practitioner and a haematology specialist – giving medical advice during media interviews, injecting patients with dermal fillers and Botox, providing medical advice to a patient, providing unapproved antibiotics and producing and relying on a fraudulent registration certificate when trying to establish their business.	Convicted of 10 charges and fined $15,000 by the Magistrates Court of Victoria at Ringwood. Practitioner was issued a cease and desist letter previously by AHPRA, but they went on to treat other patients.
CDC Clinics Pty Ltd & Weinstein v Health Complaints Commissioner (Review and Regulation) [2021] VCAT 479 and CDC Clinics Pty Ltd v Health Complaints Commissioner (Review and Regulation) [2018] VCAT 1844	14/05/21 (and 22/11/18)	Victoria	Sought revision of 2 prohibition orders (2019 Orders) made against the sole director and owner of CDC Clinics, Ms Cynthia Weinstein. Set aside order against CDC Clinic, and affirmed order against Ms Weinstein. An interim prohibition order was issued against CDC Clinics and Ms Weinstein, replacing the 2019 Orders, while the Health Complaints Commissioner (HCC) conducted two separate investigations.	Ms Weinstein is prohibited from undertaking or assisting with any surgical or medical procedure involving the cutting or piercing of skin, cutting under skin or cauterising, and the Clinic is banned from assisting Ms Weinstein.
Health Care Complaints Commission v Sharrad [2021] NSWCATOD 34	31/03/21	NSW	11 complaints of unsatisfactory professional conduct – mostly improper conduct, including failure to perform surgery to a competent standard.	Suspended registration for 5 months and then conditions imposed upon registration, submit to audits, requirement to see a psychologist.
Medical Board of Australia v Bernard (Review and Regulation) [2021] VCAT 222 (18 March 2021) and AHPRA v Name not disclosed	18/03/21 (and 06/02/18)	Victoria	Mr Bernard prosecuted for recklessly claiming that a member of staff was a registered health practitioner, when they were not. The staff member was not and had never been a registered health practitioner. Mr Bernard delegated and referred patients to the staff member and knowingly allowed them to consult and/or treat patients when he knew, or should have known that they were not a registered health practitioner. Patients at the clinic included those seeking medical treatment, cosmetic treatment and/or a mix of both medical and cosmetic consultations. This conduct also resulted in criminal proceedings on 19 November 2018, and a successful statutory offence prosecution by AHPRA against the staff member.	Mr Bernard was convicted of 7 charges and fined $16,500, and ordered to pay costs to AHPRA of $27,617. The staff member pleaded guilty in relation to their offending in February 2018 and was fined $7,500, and ordered to pay costs of $20,000. A conviction was not recorded by the court. Mr Bernard’s registration as a medical practitioner was at the time of offending, subject to conditions. The offending by Mr Bernard and the staff member came to light when AHPRA’s compliance officers were monitoring Mr Bernard’s compliance with those conditions. Mr Bernard has been disqualified from applying for registration for two years from the date of the Tribunal’s orders.
AHPRA v Name not disclosed	18/12/20	Victoria	Cosmetic doctor prosecuted because registration had lapsed, continued to undertake cosmetic procedures and surgeries in Melbourne despite this.	Convicted and fined $20,000 by the Magistrates Court of Victoria at Ringwood, and ordered to pay $27,121 in legal costs to AHPRA.
Medical Board of Australia v Marzola [2020] SACAT 116	18/12/20	SA	Practitioner prosecuted for professional misconduct relating to 8 patients. Prescribed medication where there was no evidence of therapeutic benefit; that put the health of patients at risk; and without the informed consent of patients where the medication had not been approved by the Therapeutic Goods Administration. Practising in cosmetic and anti-aging medicine.	Practitioner engaged in professional misconduct relating to 8 patients. A 9 month suspension from practice, conditions imposed on registration and payment of the Medical Board’s costs.
Medical Board of Australia v Heideman [2020] SACAT 106	16/12/20	SA	Practitioner prosecuted for professional misconduct Improper prescribing of anabolic and androgenic steroidal agents (steroids), growth hormone releasing peptides (GHRPs), growth hormone releasing hormones (GHRHs), and other prescription drugs in circumstances where there was no therapeutic basis for the prescription and the prescribing put patients at risk. Also didn’t maintain proper records or appropriate boundaries with patients.	Practitioner engaged in professional misconduct. Despite submission that regarding the practitioner’s performance as a cosmetic surgeon, the Tribunal found that the practitioner was not a fit and proper person to be a registered practitioner. Registration cancelled, disqualified from applying for a period of 4 years.
Health Care Complaints Commission v Bechara [2020] NSWCATOD 140	07/12/20	NSW	Prosecuted for practising as an enrolled nurse without on-site supervision by a registered nurse, continued to perform cosmetic injections when their registration had been cancelled and display business cards that said “cosmetic nurse”.	Registration as an enrolled nurse has been cancelled, Restriction on being able to reapply for 18 months.
Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110	30/09/20	NSW	In relation to 11 patients, failed to conduct appropriate preoperative assessments; did not obtain informed consent; inappropriately sat sedated patients up during surgery to get consent for breast implants; failed to provide adequate postoperative care for patients; invited friends and relatives to come into the operating room; failed to keep proper medical records; and in one instance, conducted a labiaplasty at the same time as breast augmentation without a general anaesthetic and in an unlicensed facility.	Registration as a medical practitioner was cancelled, not able to seek review of that decision for a period of 7 years. Had previously been convicted and fined $255,000 for conducting a private health facility and performing treatments without a licence, and separately was found negligent and ordered to pay $200,000 to a former patient.
Medical Board of Australia v Anwar (No 2) (Review and Regulation) [2020] VCAT 462 and Medical Board of Australia v Anwar (Review and Regulation) [2019] VCAT 1803	15/04/20 (and 21/11/19)	Victoria	Among other things, he had represented to the patient that he was sufficiently qualified and trained in the field of cosmetic surgery, and by carrying out a surgical procedure in a field he was not trained in, had endangered the welfare of the patient.	Mr Anwar was disqualified from applying for registration for a period of 8 years from the date of the orders. The Tribunal found that the registration had been improperly obtained by providing false or misleading material to the Medical Board, making false and misleading statements to the Medical Board, Mr Anwar had engaged in professional misconduct and misleading representations regarding qualifications.
Soutorine v The Medical Board of Australia [2020] WASAT 5	20/12/19	WA	The Court on 7 Nov 2019 had made the decision to immediately suspend the practitioner’s registration. The practitioner’s performance of cosmetic surgical procedures on two patients was deficient. The practitioner appealed to the Tribunal for a stay of the immediate action. The Court granted an interim stay of the proceedings.	The practitioner was permitted to continue to work as a doctor under strict conditions and the supervision of the Medical Board and AHPRA.
The Medical Board of Australia v Al-Naser (Occupational Discipline) [2019] ACAT 52 (11 June 2019)	04/12/19	ACT	Practitioner prosecuted for professional misconduct. Dr Al-Naser partly owned a beauty clinic. In administering a laser skin treatment to a patient, the Tribunal found that Dr Al-Naser failed to explore less invasive treatments, failure to take adequate medical history and informed consent, as well as aftercare instructions and treatment.	Practitioner engaged in professional misconduct. The tribunal ordered Dr Al-Naser be suspended for nine-months with additional conditions relating to auditing, monitoring and training when he returns to practice.
Nursing and Midwifery Board of Australia v Scott McLennan	21/11/19	Western Australia	Falsely presented himself as a nurse while working at a Western Australian cosmetic clinic. Performed the duties of a registered nurse including injecting patients with cosmetic injectables.	Convicted and fined $15,000 in the Magistrates Court of Western Australia, and ordered to pay AHPRA’s costs of $4,000.
Health Care Complaints Commission v Ibrahim [2019] NSWCATOD 131	23/09/19	NSW	Prosecuted for unsatisfactory professional conduct and professional misconduct. In performing a cosmetic procedure, patient developed hypotension and not able to be aroused. Finding of a serious lack of competence, judgment and maintenance of standards demanded of a general practitioner.	Finding of unsatisfactory professional conduct and professional misconduct. Suspended for 6 months, and upon re‑registration, is subject to extensive conditions.
AHPRA v Brittany Fairthorne	04/08/19	Victoria	Presented herself as a registered nurse and injected a patient with substances which purported to be cosmetic injectables. AHPRA also alleged that during its investigation, she provided false or misleading information and documents to an AHPRA inspector.	Convicted and fined $15,000 in the Frankston Magistrate’s Court, and ordered to pay AHPRA’s costs of $13,495.85.
Medical Board of Australia v Holten (Review and Regulation) [2019] VCAT 837 (11 June 2019)	11/06/19	Victoria	Prosecuted for professional misconduct – failed to maintain the professional boundaries that exist between a medical practitioner and their patient and so behaved in a way that constituted unprofessional conduct. He had provided cosmetic medical and surgical services to the patient 10 times between 2011 and 2014.	Engaged in professional misconduct Suspended for three months.
Medical Board of Australia v Stephen Hadges [2018] SAHPT 6	14/02/18	SA	Practitioner prosecuted for professional misconduct - inappropriate prescribing of steroids in a cosmetic and anti-ageing clinic.	Practitioner engaged in professional misconduct. Suspended registration for 8 months, conditions imposed after that – prohibited from practicing in cosmetic surgery or cosmetic medicine.
AHPRA v Mohamad Anwar	01/02/18	Victoria	A few weeks after being suspended by the Board, Mr Anwar breached the National Law by continuing to practise by providing services to patients as a medical practitioner at the Victorian Cosmetic and Laser Clinic.	Convicted and fined $100,000 in the Magistrates Court at Melbourne, and ordered to pay AHPRA’s costs of $14,888.56. No longer registered as a medical practitioner in Australia. At this point, this was the single largest fine under the National Law against an individual in Australia for claiming to be a registered medical practitioner when they are not.
Al Raheb v Medical Board of Australia [2017] VSC 494; and Medical Board of Australia v Al Raheb (Review and Regulation) [2020] VCAT 614 (4 June 2020)	24/08/17	Victoria	On 24 August 2017, the Supreme Court of Victoria dismissed Dr Eiman Al Raheb’s appeal of the VCAT decision of 15 May 2017. Original decision related to professional misconduct for the way they operated their home clinic – the clinic didn’t meet acceptable infection control standards, didn’t appropriately store medicine and injectables, among other things.	Conditions imposed on their registration requiring them to work in a multi-doctor practice and not to practise in a home-based clinic, required to practise under supervision for 24 months, continue to attend counselling for six months after returning to practice, and put in place appropriate strategies to manage their work-life balance.

^{[1] Arab, K. et al. (2019) ‘Influence of Social Media on the Decision to Undergo a Cosmetic Procedure’, Plastic and Reconstructive Surgery - Global Open, 7(8): e2333 and Furnham A, Levitas J. Factors that motivate people to undergo cosmetic surgery. Can J Plast Surg. 2012;20:e47–e50.}

^{[2] Some estimates conservatively place the cosmetic injectable industry alone as a $3.2 billion a year industry. ABC Catalyst ‘Forever Young? The Rise of Injectables’ (2022) https://www.abc.net.au/catalyst/forever-young-the-rise-of-injectables/13765928}

^{[3] Medical Board of Australia v Anwar (No 2) (Review and Regulation) [2020] VCAT 462; Medical Board of Australia v Anwar (Review and Regulation) [2019] VCAT 1803; ‘Cosmetic doctor fined $20,000 for practising after registration lapsed’ https://www.medicalboard.gov.au/News/2020-12-22-cosmetic-doctor-fined-20000.aspx; ‘AHPRA successfully prosecutes fake nurse’ https://www.ahpra.gov.au/News/2019-07-04-ahpra-successfully-prosecutes-fake-nurse.aspx; Health Care Complaints Commission v Mooney [2021] NSWCATOD 206; Health Care Complaints Commission v Sharrad [2021] NSWCATOD 34;}

^{[4] Health Care Complaints Commission v Bechara [2020] NSWCATOD 140; ‘Fake nurse carrying out cosmetic injectables successfully prosecuted by Ahpra’, https://www.nursingmidwiferyboard.gov.au/News/2019-11-22-fake-nurse-carrying-out-cosmetic-injectables-prosecuted.aspx;}

^{[5] ‘Fake cosmetic doctor convicted following prosecution by AHPRA’, https://www.ahpra.gov.au/News/2021-06-22-fake-cosmetic-doctor-convicted-following-prosecution-by-ahpra.aspx; Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110; Medical Board of Australia v Bernard (Review and Regulation) [2021] VCAT 222 (18 March 2021);

[6] Ferguson, A (2021) ABC Four Corners ‘Cosmetic Cowboys: the Unregulated World of Cosmetic Surgery’ https://www.abc.net.au/4corners/cosmetic-cowboys/13603636; Ferguson, A (2021) ‘Miracle she was alive’: Cosmetic clinic patient rushed to ICU recounts horror’ https://www.theage.com.au/business/consumer-affairs/miracle-she-was-alive-cosmetic-clinic-patient-rushed-to-icu-recounts-horror-20211129-p59d0v.html ; Ferguson, A and Day, L (2021) ‘TikTok celebrity cosmetic surgeon reprimanded by regulator’ https://www.theage.com.au/business/consumer-affairs/tiktok-celebrity-cosmetic-surgeon-reprimanded-by-regulator-20211129-p59d43.html ; Ferguson, A and Day, L (2021) ‘Celebrity cosmetic surgeon’s patient in ICU after major blood loss’ https://www.theage.com.au/business/consumer-affairs/celebrity-cosmetic-surgeon-s-patient-in-icu-after-major-blood-loss-20211117-p599qf.html ; Ferguson, A and Day, L (2021) ‘What have you done to me?’: Lanzer clinic patients reveal more harrowing experiences’ https://www.theage.com.au/business/consumer-affairs/what-have-you-done-to-me-lanzer-clinic-patients-reveal-more-harrowing-experiences-20211109-p597ab.html ; Ferguson, A and Day, L (2021) ‘How the cosmetic cowboys ran free on the wild west of social media’ https://www.theage.com.au/business/consumer-affairs/how-the-cosmetic-cowboys-ran-free-on-the-wild-west-of-social-media-20211028-p593vc.html; Ferguson, A and Day, L (2021) ‘Controversial surgeon Daniel Lanzer says he’ll stop procedures’ https://www.theage.com.au/business/consumer-affairs/controversial-surgeon-daniel-lanzer-undertakes-not-to-practice-20211029-p594i2.html; Ferguson, A and Day, L (2021) ‘Cosmetic surgeon accused of doctoring reviews on Google’ https://www.theage.com.au/business/consumer-affairs/cosmetic-surgeon-accused-of-doctoring-reviews-on-google-20211026-p593do.html;}

^{[7] Health Care Complaint Commission (NSW) (1999), The Cosmetic Surgery Report – Report to the NSW Minister for Health pp 1 (Cosmetic Surgery Report).}

^{[8] Inquiry into Cosmetic Surgery Australian Health Minister’s Advisory Council (2011) Inter-Jurisdictional Cosmetic Surgery Working Group: Clinical Technical and Ethical Principal Committee, ‘Cosmetic Medical and Surgical Procedures, A National Framework’, Final Report and Health Quality and Complaints Commission, Great expectations: A spotlight report on complaints about cosmetic surgical and medical procedures in Queensland, 2013}

^{[9] Medical Board of Australia (2016) ‘Guidelines for Registered Medical Practitioners who perform cosmetic medical and surgical procedures’, https://www.medicalboard.gov.a...}

^{[10] New South Wales. Parliament. Joint Committee on the Health Care Complaints Commission ‘Inquiry into Cosmetic Health Service Complaints (2018) https://www.parliament.nsw.gov.au/ladocs/inquiries/2476/Final%20Report%20-%20Cosmetic%20Health%20Service%20Complaints%20in%20New%20South%20Wales.PDF.}

^{[11] AHPRA (2021) ‘Review of the Regulation of Health Practitioners in Cosmetic Surgery, Terms of Reference’ https://www.ahpra.gov.au/News/2021-11-24-cosmetic-review.aspx}

By Angela Wood, Tamie Duncan-Bible & Nina Prica