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The outcomes of the Independent review of the regulation of medical practitioners who perform cosmetic surgery (the independent review) will change how cosmetic surgery can be advertised.
Following a public consultation, the Board has approved new Guidelines for registered medical practitioners who advertise cosmetic surgery. They will come into effect 1 July 2023. You can read about the changes in the news item.
An advance copy of the new Guidelines are published on the Medical Board's Codes, guidelines and policies page.
The information below outlines current advertising obligations in the context of cosmetic surgery.
Cosmetic surgery advertising has unique features which increase public risk. Cosmetic surgery advertising breaches of the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law), have now been categorised as high risk to the public and may be subject to regulatory action.
To prepare for the changes, advertisers of cosmetic surgery may wish to consider the findings of the independent review.
Section 133 of the National Law sets out the requirements of advertising regulated health services, including cosmetic surgery, and the Guidelines for advertising a regulated health service (advertising guidelines) provide more information in relation to this.
Medical practitioners should also be aware of their obligations to patients under Good medical practice: a code of conduct for doctors in Australia and the Medical Board’s Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures.
In November 2021, Ahpra and the Medical Board commissioned an external review of patient safety issues in the cosmetic surgery industry, including how to strengthen regulation of practitioners in the industry.
The final report from the independent review was published on 1 September 2022 and made 16 recommendations to improve patient safety in the cosmetic surgery sector including four about cosmetic surgery advertising.
Ahpra and the Medical Board have accepted all the recommendations from the independent review.
Cosmetic surgery means operations that involve cutting beneath the skin to revise or change the appearance of normal bodily features where there is otherwise no clinical or functional need for the procedure. Examples of cosmetic surgery include breast implants, abdominoplasty, rhinoplasty, surgical face lifts and liposuction.
The meaning of advertising is set out in the definitions section of the advertising guidelines.
Advertising includes all forms of verbal, printed and electronic communication that promotes and seeks to attract a person to a regulated health service provider and/or to attract a person to use the regulated health service. Social media is often used to advertise cosmetic surgery.
A practitioner providing information about treatment or costs in a consultation requested by the patient, whether in person, by telephone or video or via other digital means, is not considered to be advertising a regulated health service.
Anyone (person, business or corporate entity) who advertises a regulated health service1, is considered an advertiser and must comply with the advertising requirements of the National Law. In the context of cosmetic surgery this includes anyone who advertises a cosmetic surgery practice or practitioner.
Any person or entity who controls part or all of the advertising (i.e. who authorises the content) is an advertiser.
An advertiser has control of the advertising if:
Advertisers are responsible for their advertising, so they need to check any content produced by others on their behalf. Advertisers should also be cautious not to link to any content that may be in breach of the National Law.
Advertisers can include:
In the context of cosmetic surgery advertising, advertisers may include any individual who is paid or otherwise compensated or incentivised to promote a cosmetic surgery practice or practitioner. This includes social media influencers or ambassadors who receive payment, reduced fees or other compensation, from a practitioner or others.
The following explains how the advertising requirements of the National Law apply to cosmetic surgery advertising.
A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that is false, misleading or deceptive or is likely to be misleading or deceptive.
To avoid being misleading advertising should be factual and accurate. Advertisers should consider the overall impression of their advertising, including who the audience is, what the advertisement is likely to say or mean to them, and how easy it is for the audience to understand the advertising.
Advertising may be false, misleading, or deceptive when it:
When advertising claims about qualifications, membership, experience or expertise, this information must be accurate and should not create an overall impression that a practitioner holds a type of specialist registration or endorsement when they do not or is more skilled or more experienced in cosmetic surgery than is the case. Where a practitioner does not hold specialist registration, the Medical Board considers that any advertising using words or titles related to specialty is likely to mislead the public to believe the practitioner holds a type of specialist registration approved under the National Law. Advertisers should be aware of the protected titles for the profession that they are advertising.
A person must not advertise a regulated health service or a business that provides a regulated health service in a way that offers a gift, discount or other inducement to attract a person to use the service or the business unless the advertisement also states the terms and conditions of the offer.
Medical practitioners advertising cosmetic surgery procedures should also be aware of the requirements for advertising financing schemes in the Medical Board’s Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures and the Medical Board’s Information Sheet - Cosmetic medical and surgical procedures – guidance on financing schemes.
Advertising that offers a gift, discount, or other inducement to attract someone to use the regulated health service or business must state the terms and conditions of the offer, gift or inducement, and these terms and conditions should be provided in plain language.
Advertisers should ensure that terms and conditions are easily found and accessible.
Advertising may be in breach of the National Law when it:
A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that uses testimonials or purported testimonials about the service or business.
Ahpra and the Medical Board now consider any unlawful use of testimonials to advertise cosmetic surgery to be high risk to the public. Testimonials for cosmetic surgery also raise unreasonable expectations of beneficial outcome. The outcome of one individual patient’s cosmetic surgery does not necessarily represent the outcome for all patients, as results are dependent on each patient’s individual physical features, diet, lifestyle and other factors.
Stories from patients are testimonials if they are used to advertise a cosmetic surgery practice or practitioner. For example, if they are shared on a practitioner or clinic’s website or social media pages, or if a practitioner or clinic shares, republishes or promotes the story it is likely to be considered using a testimonial to advertise a regulated health service, which is prohibited.
In particular for advertisers of cosmetic surgery this means:
Advertisers are not responsible for removing or trying to remove testimonials published on platforms they do not control or on sites that are not advertising a regulated health service.
However, advertisers should take care if they choose to engage with reviews on a third-party site, such as a patient’s social media, as this may be considered using a testimonial to advertise a regulated health service.
A person must not advertise a regulated health service, or a business that provides a regulated health service in a way that creates unreasonable expectation of beneficial treatment.
The independent review emphasised the risks when cosmetic surgery advertising creates unreasonable expectations of beneficial treatments by promoting outcomes that may not be attainable for many people.
Advertisers of cosmetic procedures should review their advertising and ensure the advertising displays a range of normal outcomes and does not create unreasonable expectations of outcome.
Advertising that may increase unreasonable expectations of beneficial treatment includes:
Special care should be taken when using ‘before and after’ images in advertising a regulated health service as they have the potential to be highly misleading. These images may also cause a member of the public to have unreasonable expectations of a successful outcome. Use of ‘before and after’ images are less likely to be misleading if:
Advertisers should ensure advertising contains easily visible or accessible information for patients that outcomes will vary by individual and genetics, diet, exercise, and other factors will affect outcomes for individuals.
A person must not advertise a regulated health service or a business that provides a regulated health service in a way that directly or indirectly encourages the indiscriminate or unnecessary use of a regulated health service.
Any health intervention involves inherent risks, so encouraging the use of a regulated health service which is not based on clinical need or therapeutic benefit is not in the public interest.
The independent review noted that there are many potential risks to the public in the advertising of cosmetic surgery due to the nature of cosmetic surgery as an elective procedure where no clinical or functional need exists.
Advertisers should review their advertising and ensure any advertising of cosmetic surgery does not: