New advertising guidelines proposed for non-surgical cosmetic practitioners
Who doesn’t love a good “before and after” photo! Hey – no judgement here - I too lament the crease-free skin of my youth! And I am not alone, with Australians reported to spend more than one billion dollars a year on non-surgical procedures.
This morning the Australian Health Practitioner Regulation Agency (Ahpra) published a comment confirming advertising (and patient management generally) by non-surgical cosmetic practitioners will be “under the spotlight” this year.
Last year Ahpra and the Medical Board of Australia (MBA) commissioned an independent review into cosmetic procedures to reform the industry for higher practice standards, improved safeguards for advertising and a reporting culture.
And the message is being heard - the number of reported complaints of serious harm from cosmetic surgery has grown significantly since attention was focussed on the sector over the past 18 months. Ahpra has reported that over the last year its Cosmetic Surgery Hotline has since received 428 calls from patients concerned about cosmetic treatments, doctors who have been engaged to ‘fix’ cosmetic treatments and the general public as part of their pre-procedure due diligence. Additionally, the hotline recorded 179 formal complaints or notifications – which has resulted in 26 doctors either prohibited from or restricted in their practice.
While Ahpra continues its work on the recommendations identified in the independent review, it appears to be turning its mind to the prolific sub-sector of non-surgical cosmetic providers.
Ahpra’s statement today confirms that it is “widening” its focus with new guidelines for non-surgical cosmetic practitioners (as opposed to medical practitioners who perform cosmetic surgery). The new guidelines are proposed to focus on appropriate advertising practices as well as pre-procedure consultation and patient information handling processes.
Practitioners’ use of “before and after” photos and client testimonials in advertising are likely to be significantly limited by the new guidelines. It is further proposed that the new guidelines will extend to regulate the use of influencers and social media figures.
Arguably advertising cosmetic procedures, including practice and practitioner websites and social media, is already complex with multijurisdictional regulators monitoring this space – such as Therapeutic Goods Administration (under the Therapeutic Goods Act 1989 (Cth)), Australian Competition Consumer Commission (under Competition and Consumer Act 2010 (Cth)) and Information Commissioner (under the Privacy Act 1988 (Cth)). The new guidelines are likely to add another level of compliance for practitioners.
Ahpra’s focus on advertising practices is synchronously timed with the Australian Government’s review of the Privacy Act. (Noting that all medical practitioners are automatically covered by the Privacy Act due to the fact they provide health services (and therefore deal in health information)). A proposed change to the Privacy Act is to amend the definition of “consent” to make it clear that consent must be voluntary, informed, current, specific and unambiguous. The new guidelines are likely to add to this heightened level of consent by requiring fully informed consent from patients, separate from the consent to surgery, to use their image in any advertising. Together with the new guidelines, there is no doubt that the Privacy Act reforms (if passed) will require businesses in the cosmetic industry to make substantial changes to the way they advertise and interact with patients.
The responsibility for advertising content published squarely lands on the registered practitioner of the practice. So it is in their best interests to check all of their advertising content is compliant with applicable laws and regulations.
Public consultation on the new guidelines will open in coming months ahead of its proposed release in the first half of 2024.
For advice regarding your current advertising and consent procedures or preparation for the public consultation contact Jackson McDonald.
by Ariel Bastian, Associate