Body image is complex. In 2007, a national survey of almost 15,000 people between the ages of 11 and 24 years of age, conducted by Mission Australia, revealed that body image was of significant concern for approximately one third of respondents. Twenty per cent of respondents resided in Queensland.
The work and cause championed by Tarryn Brumfitt, 2023 Australian of the Year, to promote self-acceptance and a positive body image in adults and children, along with the Medical Board of Australia’s revised Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures (Guidelines) which come onto effect on 1 July 2023, provide an opportunity to review the legislation regarding the performance of cosmetic procedures on children.
The Guidelines which will be regarded when considering a doctor’s conduct now require a doctor to know and comply with relevant legislation of the jurisdiction in which they practise, in relation to restrictions on cosmetic procedures for patients under the age of 18.
The Health Legislation (Restriction on Use of Cosmetic Surgery for Children and Another Measure) Amendment Bill 2008 (Qld) (the Act) amended the Public Health Act 2005 (Qld) (Public Health Act) on 5 November 2008. At the time the Act was introduced, despite the absence of publicly available data on the types and numbers of cosmetic procedures performed in Australia, there were concerns that the number of young people seeking cosmetic procedures for purely aesthetic reasons was on the increase. One of the key objectives of the Act was to protect children from risks associated with undergoing higher risk and more invasive cosmetic procedures when the procedures being performed were not considered to be in the best interests of the child.
What is a cosmetic procedure
Under Chapter 5A of the Public Health Act cosmetic procedures include:
- the removal of excess skin or fat and reshaping of a part of the body (abdominoplasty, blepharoplasty, brachioplasty, foreheadplasty, liposuction/liposculpture, rhytidectomy, thighplasty and torsoplasty);
- resurfacing of skin removing the epidermis and penetrating the papillary dermis (chemical peels, dermabrasion and laser resurfacing);
- insertion of facial contour implants;
- mammaplasty (breast reduction, breast augmentation and breast lift);
- procedure to alter the shape and size of the chin (genioplasty);
- procedure to alter the shape and size of the nose (rhinoplasty);
- injection of non-biodegradable/permanent fillers; and
- porcelain veneers to the front surface of a tooth.
Offences and penalties
It is an offence to perform or offer to perform a cosmetic procedure on a child and the maximum penalty applicable to an offence under s213B of the Public Health Act is 2000 penalty points (currently $287,500) or two years imprisonment. However, a person does not commit an offence if they believe on grounds that are reasonable in the circumstances, that performance of the procedure is in the best interests of the child.
Section 213B will apply despite the operation of section 282 of the Criminal Code 1999 which provides a defence to criminal culpability when providing a surgical operation or medical treatment in good faith and with reasonable care and skill.
Best interests of the child
While the onus is on the prosecution to prove that a person did not have sufficient regard to the best interests of the child; s213B(3) of the Public Health Act provides that proof that the person did not have sufficient regard to various listed matters is sufficient to prove that they did not have the sufficient regard to the best interests of the child. Accordingly, comprehensive clinical records to demonstrate that a doctor has considered existing guidelines and policies of key medical professional bodies and colleges, and the matters below are recommended to demonstrate that the best interests of the child have been considered:
- if a child is able to form and express views, the child’s views, having regard to the child’s maturity and understanding of the procedure and its risks;
- to the extent that is possible, the views of the parent/guardian, noting that parental rights may be seen to be overridden if it is determined that performance of the cosmetic procedure is not in the best interests of the child;
- whether performance of the procedure would correct a growth or congenital abnormality or the physical effect of a medical condition, illness or trauma;
- whether performance of the procedure would have a positive effect on the child’s psychological health; and
- the timing of the procedure and whether waiting until the child is an adult would be preferable.
The Guidelines impose further responsibilities which include an assessment of a patient’s capacity, referral to an independent psychologist, psychiatrist, or general practitioner to identify any potential underlying psychological problems which may render the patient unsuitable for surgery, and a cooling off period of at least 3 months between the provision of informed consent and the performance of the procedure.
Cosmetic procedures can be performed on children when it is in the best interests of the child. Given the low burden of proof for a successful prosecution of an offence, good record keeping is essential for any doctors who have been asked to perform or are considering performing a cosmetic procedure on a child.
This article was written by Katharine Philp, Partner and Heather Nieuwenhoven, Associate.