In the media: VAD in Victoria; the thalidomide assistance scheme; sexual misconduct reforms in health care

This post is just a brief discussion of three media contributions I have made in the last few months.

Interview on SIX News about Victorian VAD laws

I was interviewed in December last year for the Six News Australia program Between Parkes Place and Capital Hill about a judgment of November 2023, delivered by Abraham J as a single judge of the Federal Court of Australia. The judgment concerned the validity and operation of certain provisions of the Victorian euthanasia law — the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act).

That decision of Abraham J, in the case of Carr v Attorney-General (Cth) [2023] FCA 1500 (30 November 2023), found that certain sections of the VAD Act (s 57(a); and ss 19(1)(d)–(e) and 28(1)(d)–(e)) were inoperative because they authorised a form of assisting suicide that was inconsistent with sections of the Commonwealth Criminal Code Act 1995 (Cth) — namely, ss 474.29A and 474.29B. Those criminal provisions, which were inserted into the Code in 2005 by the Howard government in the context of an earlier stage of the euthanasia debate, made aiding and abetting suicide by a carriage service a criminal offence. See, eg, section 474.29A(1) below (noting that the many subsections that follow sub (1) are omitted here):

It was unsurprising, I guess, in view of the legislative history of the Code provisions that, on a purposive analysis, Abraham J would find that the criminal Code was intended to criminalise the very thing authorised by the Victorian VAD Act.

The implications for the applicant doctor in this case, and for the operation of the VAD Act in Victoria, were considerable. That’s no surprise, however, as this was really a test case to determine a question of law: namely, whether a doctor discussing assisted dying with a patient over the phone would be prosecutable under the Cth criminal law. In other words, the doctor-applicant here saw his and his peers’ exposure to criminal liability as a possibility and was proved correct in going to the FCA to ensure that he would (or would not) be so exposed if he were to discuss suicide with any of his relevant patients under the Victorian law.

The interview is about 30 minutes’ long, and I thank the presenters for their detailed discussion. Oh — and one last note. I was alerted just yesterday that Kate Chaney MP has moved a Bill — which is here — that would amend the Criminal Code so as to make the Victorian law operative again.

Comments on the thalidomide inquiry and the federal government’s response

Also in December, my brief comments appeared in a short news story on thalidomide, which was published in the wake of a report published by the Senate Community Affairs References Committee about thalidomide, titled Support for Australia’s thalidomide survivors, and following the apology in Parliament by the Prime Minister to those who survived thalidomide and their families for the trauma and harms caused them in the 1960s.

There is a lot to say about the Australian thalidomide episode; however, what is unusual about the Senate Report is its discussion of and request for legal advice received by Australian MPs regarding the question of the Commonwealth’s liability or ‘obligations’ after it permitted thalidomide to be supplied in the Australian therapeutic goods market. Ultimately, the Report recommended that the legal advice be published to the public. However, that recommendation was not accepted by the government; it was merely noted, with no reasons or any response.

As the Senate report states (footnotes removed):

2.87. Early in the inquiry the committee was advised that the former Minister for Health, the Hon. Sussan Ley MP, commissioned advice from Maddocks Lawyers about Australia’s obligations to its thalidomide survivors.

2.88. On 19 June 2018, the Senate agreed that a copy of the document should be provided to the Senate by 20 June 2018. On 16 August 2018, Senator the Hon. Bridget McKenzie, representing the Minister for Health in the Senate, made a public interest immunity claim over the document. Senator McKenzie’s public interest immunity claim was based on the fact that the document was legal advice to government:

It has been the long-standing practice of successive Australian Governments to not disclose privileged legal advice, including advice that canvasses possible constitutional issues.

2.89 In the interim report the committee requested that a copy of the advice be
made available to the committee to help it to understand the options available
to the Australian Government.

2.90 The Maddocks Lawyers’ advice was not made available to the committee and
the committee was unable to verify or consider the contents of the advice. This
is important as the advice could have provided the committee with a better
understanding of the legal context in which the Australian Government is
being asked to respond to the Thalidomide Group Australia’s requests. The
advice could have also provided the committee with important information
regarding the current options available to the Australian Government for
supporting thalidomide survivors.

2.91 Instead, the only evidence the committee has about the advice comes to it
indirectly. The committee received some evidence that a ministerial adviser
revealed some of the content of that advice to the Director of the Thalidomide
Group Australia, Ms Lisa McManus. According to Ms McManus, the adviser
provided her with the following information about the advice:

– the advice is 23 pages long;
– it provided five possible options;
– one of the options was to ‘do nothing’; and
– it concluded that the Australian Government had no legal obligation, but
that the Australian Government has a ‘moral responsibility’ to assist
thalidomide survivors.

Committee view
2.92. The committee considers that Australian governments have a moral obligation
to Australia’s thalidomide survivors. The committee notes that both the
Australian Government and the state governments failed to monitor drug
safety at a time when other governments around the world did so. Documents
provided to the committee demonstrate that the Australian Government was
aware that more could be done to safeguard public health from dangerous
drugs. The committee notes that the formation of the Therapeutic Goods
Administration was a direct result of the thalidomide disaster and notes
evidence to the inquiry that suggests such a body could have been, and should
have been, established earlier.

Parl Info

Obviously, whether the Maddocks advice might have suggested or explored any cause of action against the Commonwealth for historical negligence is of immense interest to victims (and to a lesser extent legal scholars). It does seem to me that there would not be very high prospects of a case on today’s law. However, if the Maddocks advice included five possible courses of action, one of which was ‘do nothing,’ what were the others? Are any of those options not canvassed by the Senate Committee?

What really strikes me as difficult about this issue is that the Committee was not itself able to review the advice, in circumstances where one might expect that Senators, as sworn officers of the Commonwealth, might be entrusted with such documents. After all, the lawyers who wrote the advice, while also bound by legal professional privilege, are not sworn officer of the Commonwealth. But I digress. It may be left to negligence scholars such as myself to guess and theorise about what liability might, on a given historical account, be affixed to the Commonwealth — if any.

Sexual misconduct reforms to health practitioner law

Proposed reforms to the Health Practitioner Regulation National Law, or National Law, have been circulated for consultation recently. The National Law is an Act separately enacted in most of the different states as part of a national scheme for regulating health practitioners called the National Registration and Accreditation Scheme, or NRAS. Technically, the NRAS is designed as an applied laws scheme, because the template is a Queensland law that then gets ‘applied’ in other jurisdictions. But because not every state applies the Queensland law (NSW enacts the law itself), it’s actually probably best described as a ‘combination scheme.’ In any event, it’s a co-operative scheme between the states and Commonwealth; however, there is no Commonwealth-level legislation.

I wrote about these promising reforms for The Conversation here. In essence, the reforms aim to put a stop to the rising rates of notified sexual misconduct and boundary violations that are emanating from the clinical practices of health practitioners nationwide. However, a few notes I might now add include the following.

First, much credit for the shape and substance of the reforms should be duly extended to Prof Jenni Millbank of UTS, whose several detailed publications on the National Law have really unearthed the difficulties that these reforms attempt to address. For instance, the second proposal, which is about bringing other states’ reinstatement processes up to the same level of strictness as the process in NSW, would probably not have been possible to float unless Millbank had identified and argued about this problem in one of her excellent refereed articles.

Second, the NSW version of the National Law has been stricter from the very beginning (2009), and the reform processes hence have — in my view inevitably — been a slow and somewhat agonising process of watching all the other states catch up to where NSW began.

In my view, this has also really been the consequence of the National Registration and Accreditation Implementation Project (NRAIP) team not really clicking with the NSW participants in its original discussion in 2008. While the NSW advocates were clear and compelling in arguing for the preferability of the existing NSW practitioner law (and on that basis ‘carved out’ parts of the NRAS to retain those preferable laws), the NRAIP team seemed wedded to the template, and may have failed to identify all the real virtues of the stricter NSW system. That was the NSW system which had developed, in short, in response to several scandals — principally, Chelmsford, “Butcher of Bega,” and Dr Sood, and which, in 1983, created the first ‘HCE’ (health complaints entity) — namely, the HCCC — in the world.

Alright — thanks for reading.

Radio interview about cosmetic surgery regulation

I was interviewed alongside two leading voices in plastic and cosmetic surgery on 2SER

I recently was interviewed by 2SER’s The Wire (‘New Endorsement Model for Cosmetic Surgeons in Australia‘) in a program covering the newly proposed regulation of cosmetic surgeons through an endorsement model. The recent acceptance by the Health Ministers of the proposed endorsement model follows the production of an independent report commissioned by AHPRA and the Medical Board of Australia last year, which recommended the same.

However, another reform was also proposed and accepted — as a separate matter — in a decision of the Health Ministers in Febrary (effectively the Ministerial Council for the purposes of the relevant Health Practitioner Regulation National Law (NSW) (‘National Law‘)). That was a proposed reform to make the title ‘surgeon’ a protected title.

Adobe Stock under a University of Sydney licence.

Though details of the relevant Bill, titled the Health Practitioner Regulation National Law (Surgeons) Amendment Bill 2023, are not yet published, the effect of this reform would be, I presume, to add the title surgeon to the list of protected titles that currently appears in a Table (see below) under section 113 of the National Law.

At the moment, there are a number of titles protected under this section 113 Table for each of the 15 health professions. However, only ‘medical practitioner’ appears as a protected title within the category of medical practitioners. Presumably, the title ‘surgeon’ would be added here. (Interestingly, the term ‘dental surgeon’ is also not specified in this statutory table next to dentists; although certain restricted dental acts are specified under section 121.) The table appears in the National Law as below:

Given that the titles in the above table require a parliamentary amendment to change, they may be regarded as a ‘durable’ list of titles that strictly cannot be used without the relevant legal authorisation: namely, registration from AHPRA and the relevant health practitioner board.

Below this level of ‘strict’ or ‘durable’ regulation, however, there are a number of ‘specialist registrations’ that various health professionals may qualify to hold, including in medicine, dentistry, and even surgery. These specialist titles for surgery are also currently restricted — even though the general term ‘surgery’ is not. And you need to hold a ‘specialist registration’ to use them. And so, through this regulatory arrangement, a registered medical practioner with simply a general registration can currently call themselves a ‘surgeon’; however, that practitioner will need a specialist registration (with special training) to call themselves a ‘specialist orthopaedic surgeon’ or ‘specialist plastic surgeon.’

In terms of regulatory reform, however, it could be said that these specialist titles in surgery — just like all the specialist titles — are a bit less durable, or alternatively more agile, than those named in the primary Act. That’s because you do not need to change the primary law by amendment to change these. They can be changed when AHPRA recommends that a specialty should be recognised to the Health Ministers and the Health Ministers agrees.

And it would arguably be quite burdensome for Parliament to have to amend the National Law (namely, the table under section 113) every time the Health Ministers decided that a new specialist registration should be recognised and its use, as a title, restricted. Thus, the currently restricted specialist titles are not housed in the primary Act but are instead identified by the Medical Board of Australia here. The relevant part of this list for surgeons is reproduced below:

Importantly, however, the Health Ministers, or the Ministerial Council, is the body that approves what new specialist registrations are possible under the relevant sections of the National Law: namely, section 13(2) of the National Law. Once the specialist registration is approved, the Australian Medical Council (the practitioner training accreditor) and the Medical Board of Australia (the regulator of medical practitioners) then use guidelines (published in 2018) to ensure that anyone who seeks and holds such a specialist registration has undergone the relevant accredited course of training.

Notably, when the title ‘surgeon’ is protected, this appears to create protection for a more capacious or extensive rage of practitioners than ‘cosmetic surgeons.’ Indeed, the term ‘cosmetic surgeon’ will not be a specialist registration for a surgeon, and so it will not be protected. Rather, the more general term ‘surgeon’ appears to be proposed as the one that will be protected, and this may have strange ramifications for those who are practising cosmetic surgery. Presumably, there will be an exception that says ‘cosmetic surgeons are able to use the title ‘surgeon” when it is used in the full title ‘cosmetic surgeon.’

However, to make this make sense, the so-called ‘endorsement’ model will have to be created so that ‘endorsed’ cosmetic surgeons will be able to use the title in this way (as an exception) only. If any medical practitioner who performs cosmetic surgery is able to use the title surgeon as they describe themselves as a ‘cosmetic surgeon’ — even if they do not have an endorsement — then the title protection will be otiose.

This takes me to the first point I raise in this interview: namely, whether the ‘endorsement’ model will require registered medical practitioners who perform cosmetic surgery to be endorsed, or whether it will simply be a ‘nice to have’ — so that health consumers can feel better guided by the accreditation standard signalled by their chosen practitioner’s endorsement in the area of cosmetic surgery. I think this gets addressed in my analysis above. What I suspect will happen is that ‘endorsed’ cosmetic surgeons will have an entitlement to call themselves ‘surgeons’ without liability of penalty. The current example of this is the case of acupuncturists, which also have an endorsement model.

Under section 114 of the National Law, there is a carve out for acupuncturists that permits them to use the title without any liability:

As can be seen in the provision above, the acupuncturist can only call themselves an acupuncturist if they have an endorsement under section 97 of the National Law, as follows:

I suspect we will see similar provisions inserted into the National Law for cosmetic surgeons, although it could be that cosmetic surgeons are covered by the catch-all provision for certain areas of practice under section 98 (‘Endorsement for approved area of practice’) and regulations take care of clarifying that a cosmetic surgeon is an approved area of practice. However, in my view, the legislature should mirror the acupuncturist provisions to make the reform abundantly clear and durable.

The other point I make at the end of the interview related to the resolution of the so-called turf war that has been long running between ‘untrained’ cosmetic surgeons and those who have significant training — the plastic surgeons and others who are fellows of the Royal Australasian College of Surgeons.

Obviously, I am relatively neutral in this debate, not being from either camp. However, I was sandwiched, as it were, between the leading voices from each camp in this interview, which made it an interesting result, given that I had no idea that these other interviewees would be taking part. Luckily, I did not take sides inadvertently, and, perhaps as some kid of reward, was gifted a few minutes’ exclusive commentary at the end of the report.

Please let me know if you have any feedback on my take below or on Twitter.

Doctors may soon get official ‘endorsements’ to practise cosmetic surgery – but will that protect patients?

This article was originally published in The Conversation here.

Image: Adobe Stock under a University of Sydney licence.

Disturbing reports about botched cosmetic surgeries and injuries in Australia – from breast augmentations causing chronic pain to liposuction leaving patients with lifelong injuries – have sparked concerns in recent years. Several high-profile cosmetic surgeons alleged to have fallen short of expected professional standards have been disciplined.

Last year, a class action was commenced against one clinic in the Victorian Supreme Court.

People who are interested in exploring whether cosmetic surgery is appropriate for them are right to feel wary and confused. Now, the introduction of a scheme to officially endorse doctors who practise in the area of cosmetic surgery promises to allay patients’ doubts. But the idea remains contentious for those in the field.

The story so far

In the wake of cosmetic surgery controversies, two significant but separate responses have been adopted by medical regulators. First, the country’s health ministers began a consultation to decide whether to stop doctors promoting themselves as “surgeons”.

The consultation acknowledged a gap or “loophole” that allows any registered medical practitioner to call themselves a surgeon in Australia, even with no specialist training beyond their medical degree.

The second response was initiated in December 2021, by AHPRA, which accredits and registers doctors, and the Medical Board of Australia, which regulates the practices of registered medical practitioners. Together, they commissioned an independent review into the regulation of medical practitioners who perform cosmetic surgery in Australia.

Although informed by each other, these separate initiatives wrought distinct solutions. While one has been embraced, the other remains controversial.

Image: Adobe Stock under a University of Sydney licence.

Ministerial reforms

After nearly two years of consultation, the health ministers decided last December to restrict the use of the title “surgeon”. Soon, only medical practitioners holding a specialist registration, such as ophthalmology, will be permitted to use the title.

In a meeting late last month, health ministers approved a draft bill to give effect to this decision. While the draft remains unpublished, no stakeholders in the health sector appear to have criticised the change.

But the health ministers approved another, more controversial, reform as well. They welcomed a new model of accrediting cosmetic surgery practitioners known as an “endorsement of registration”. This proposal came from the AHPRA and Medical Board review.

AHPRA and the Medical Board’s ‘endorsement model’

Among its 16 recommendations (all of them accepted by AHPRA and the Medical Board), the independent review’s first and most significant reform proposal was to establish an “area of practice endorsement” for cosmetic surgery.

The technical language of “endorsement” comes from consistent national laws enacted, with minor variations, in each state and territory.

In a nutshell, “area of practice endorsement” would introduce new minimum standards for the education, training and qualification of Australian medical practitioners seeking to practise as cosmetic surgeons.

Currently, the Medical Board uses codes of conduct and guidelines to regulate most doctors’ practices.

But these “soft law” instruments permit doctors to decide for themselves whether they are competent enough to perform procedures like brow lifts or tummy tucks.

The new endorsement model would require doctors to apply to the Medical Board to qualify to practice in the area of cosmetic surgery. To be approved, the doctor-applicant would need to furnish evidence of their qualifications. Such an endorsement arrangement already exists for acupuncture.

Together with restricting the title “surgeon” and some other reforms (such as improved information campaigns), it is now hoped the endorsement model would manage risky cosmetic surgeries by requiring practitioners to be endorsed by the Medical Board. But not everyone thinks it’s the way to go.

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

What’s the problem with endorsement?

Fresh forms of old tensions have arisen, based on how endorsement will be designed. At the core of these tensions is a debate about how the Australian Medical Council, which is responsible for setting the accreditation, training and education standards for the medical profession, will determine the curriculum and assessment regimes for cosmetic surgery study programs.

What was once a debate about an unregulated area of practice is now about what kind of training cosmetic surgeons should have before wielding their instruments.

Some experts suggest defining cosmetic surgery could help regulation and safety discussions. Meanwhile, the Royal Australasian College of Surgeons says it will oppose any study program of a lesser standard than that required of specialist surgeons.

Although the Australian Medical Council has not yet published its education standards for cosmetic surgery, it has proposed six draft qualification standards and is consulting with the profession.

What this could mean for patient safety

On the one hand, the proposed changes are a continuation of a long-running turf war. On one side are the surgeons with special accreditation, approved by the Royal Australasian College of Surgeons and typically engaged in reconstructive plastic surgeries. On the other, stand the so-called “non-surgeons” or “wannabees”.

The debate is also about protecting patients and legislative reform.

It is too early to determine whether the Australian Medical Council’s endorsement standards will improve patient safety. But the slow process of reforming the cosmetic surgery “industry” – in the face of explosive increases in demand, fuelled in part by seductive social media claims – illustrates how complex medical regulation is in Australia. With so many regulatory actors involved in our polycentric system, feuds over governance are unsurprising.

Today, the cosmetic surgery industry is estimated to be worth more than one billion dollars a year. It is crucial regulators ensure the public is protected from unscrupulous – or unqualified – operators.

Interview on Eastside FM

I recently published an article in the Conversation on proposed changes to the regulation of cosmetic surgery in Australia here. In essence, the state and territory Health Ministers have decided, after three years of consultation, to make the title ‘surgeon,’ as well as ‘cosmetic surgeon,’ a protected title. This will mean that cosmetic surgeons will need to undertake specialist training to call themselves a surgeon soon. At the moment, however, this is not the case. This change comes after more than twenty years’ debate on the subject, so it’s a notable change.1See, eg, Dale Jobson and Ian Freckelton, ‘The Changing Face of Cosmetic Surgery Regulation: A Review of Controversies and Potential Reforms’ (2022) 92(5) ANZ Journal of Surgery 964.

On these issues, I had the pleasure of being interviewed by Daniel Bingham, the producer of the fantastic program Context, which is broadcast on East Side FM (89.7) on Thursday nights. The interview is available here. It runs for about 30 minutes and covers a range of topics about medical practitioner regulation.