Callan v Medical Board of Australia

Supreme Court of NSW|2024-02-29|Before: Griffiths AJ

Background facts summarised

The 2023 Guidelines were prepared and published against the background of a recommendation made in a report dated August 2022 titled "Independent review of the regulation of medical practitioners who perform cosmetic surgery". I shall refer to the report as the Brown Report, in recognition of the fact that the independent review was conducted by Mr Andrew Brown, a former Queensland health ombudsman.
The Brown Report recommended that the Australian Health Practitioner Regulation Agency (Ahpra) and the Medical Board revise the existing advertising guidelines and/or "produce additional material specifically about cosmetic surgery to clarify the standards expected of practitioners" (recommendation 11). There was a further recommendation that the Medical Board review, carry out consultations, and update its existing guidelines for medical practitioners who perform cosmetic medical and surgical procedures to clarify expectations (recommendation 13). The Brown Report also recommended that the Medical Board strengthen the extant Cosmetic Guidelines by reviewing where the word "should" is used and consider using the word "must" instead to make expectations clearer (recommendation 14).

The legislative regime summarised

In large part, the complexity of the legislative regime stems from its origins as the National Law, which has not uniformly been adopted in each jurisdiction. I shall briefly outline the regime.
The genesis of the national scheme for health professions is the Intergovernmental Agreement for a National Registration and Accreditation Scheme for the Health Professions, which was agreed in March 2008. In brief, the national scheme seeks to ensure that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. Health practitioners have a single registration which is recognised anywhere in Australia. There are uniform standards for the registration of both health practitioners and health education providers.
The National Law establishes National Health Practitioner Boards (National Boards) for each registered health profession (of which currently there are 16), including the medical profession of which both plaintiffs are registered medical practitioners. The National Law also establishes a framework for National Boards to approve registration standards, codes and guidelines, as well as other matters. Section 31 establishes the National Boards, one of which is the Medical Board, which has responsibility for the medical profession.
The somewhat metaphysical nature of the cooperative scheme is reflected in the fact that the Medical Board was established eight times, once by the law of each participating jurisdiction. The metaphysicality is further highlighted by the fact that s 7 of the National Law states that the Parliament of each participating jurisdiction intends the entity established within that jurisdiction to be a single national entity. Currently, there are 15 National Boards established for the 16 registered health professions.
The Medical Board is entitled to exercise its functions with respect to single or multiple jurisdictions simultaneously (s 3).
Queensland is the host jurisdiction for the National Law, which is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (Queensland Act) (see s 4 of that Act). It is necessary, though somewhat confusing, to interpolate here that Queensland separately has adopted the Health Practitioner Regulation National Law (Qld) (Queensland National Law) (which does not itself wholly implement the Schedule to the Queensland Act). On 1 July 2010, NSW adopted the Schedule, with amendments, as a law of NSW. This was achieved by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (NSW Adoption Act). Initially, if the Schedule was amended by Queensland legislation, the amendment automatically became the law of NSW in accordance with s 4(a) of the NSW Adoption Act.
This changed in 2022. By the Health Legislation (Miscellaneous) Amendment Act) 2022 (NSW), any amendments to the Schedule in the Queensland Act no longer take effect as law in NSW unless a regulation is made in NSW adopting, with or without modification, those amendments. This may be described as a Henry VIII clause because it allows primary legislation to be modified by regulation.
In the second reading speech to the Bill which introduced the 2022 amendments, the then Minister for Health explained that the automatic adoption by NSW of changes to the Queensland law "lacks parliamentary oversight and can impact on the distinct nature of the complaints process in this State" (Legislative Assembly, 23 February 2022, p 6959). For convenience, I will refer to the relevant legislation in NSW as the NSW National Law.
In Victoria, the Schedule was adopted without modification (see Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)). Similar legislation was enacted in each other State and Territory, apart from Western Australia. That State has not directly adopted the Schedule, but has instead enacted corresponding legislation in the form of the Health Practitioner Regulation National Law (WA) Act 2010 (WA), the Schedule of which is the Health Practitioner Regulation National Law (Western Australia) (WA National Law).
Under the current arrangements, any amendments to the Schedule to the Queensland Act automatically apply to Victoria, South Australia, Tasmania and the Territories. That is not the case, however, in NSW or Western Australia.
In sum, the National Law is intended to be a national scheme, with Queensland as the host jurisdiction. But the scheme comprises four versions of the National Law, namely the Schedule (applicable in Victoria, Tasmania, South Australia and the Territories); the NSW National Law; the Queensland National Law (where the Schedule does not take full effect as a law of Queensland because its adoption is modified by Pt 4 of the Queensland Act); and the WA National Law.
In addition, NSW did not adopt all parts of the Schedule. It has its own co-regulatory arrangement in substitution for the health, performance and conduct process under Pt 8 of the National Law. In NSW, the Health Care Complaints Commission assesses and manages complaints about registered health practitioners in conjunction with the relevant health professional council.
I will now summarise the functions and powers of the Medical Board (noting that it is a National Board), with reference to the NSW National Law.
The functions of the Medical Board (and other National Boards) are set out in s 35(1), which relevantly provides (noting in particular s 35(1)(c)): 35 Functions of National Boards (1) The functions of a National Board established for a health profession are as follows - (a) to register suitably qualified and competent persons in the health profession and, if necessary, to impose conditions on the registration of persons in the profession; (b) to decide the requirements for registration or endorsement of registration in the health profession, including the arrangements for supervised practice in the profession; (c) to develop or approve standards, codes and guidelines for the health profession, including - (i) the approval of accreditation standards developed and submitted to it by an accreditation authority; and (ii) the development of registration standards for approval by the Ministerial Council; and (iii) the development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession; … (q) to do anything else necessary or convenient for the effective and efficient operation of the national registration and accreditation scheme; …
The distinction between the functions of registration and developing or approving standards, codes or guidelines for the health profession is to be noted.
Division 3 of Pt 5 provides for registration standards and codes and guidelines. A National Board is obliged under s 38 to develop and recommend to the Ministerial Council one or more registration standards about various matters concerning applications for registration and ongoing requirements for registered health practitioners.
Section 39 is important. It provides for the making of codes and guidelines (noting that neither of those terms is defined): 39 Codes and guidelines A National Board may develop and approve codes and guidelines - (a) to provide guidance to the health practitioners it registers; and (b) about other matters relevant to the exercise of its functions. Examples - 1 A National Board may develop guidelines about the advertising of regulated health services by health practitioners registered by the Board or other persons for the purposes of section 133. 2 To assist a health practitioner in providing practice information under section 132, a National Board may develop guidelines about the information that must be provided to the Board.
Section 40 provides that, if a National Board develops a registration standard or a code or guideline, it must ensure that there is wide-ranging consultation about its content.
Section 41 is another important provision. It provides for how registration standards, codes or guidelines may be used in disciplinary proceedings: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession.
Subdivision 4 of Div 11 in Pt 7 deals with advertising. Section 133(1) makes it an offence for a person to advertise a regulated health service in various specified ways. Subsection 133(3) provides: 133 Advertising … (3) In proceedings for an offence against subsection (1), a court may have regard to a guideline approved by a National Board about the advertising of regulated health services. …
It should be interpolated here that, despite differences across the jurisdictions, the above-cited provisions are identical throughout the States and Territories, which is important to recognise for the purposes of considering ground 1 (discussed further below). There are, however, differences in some jurisdictions regarding the guiding principles, to which I now turn.

2022 Amendments

It is necessary now to descend into perhaps even more complex detail by describing the effect of amendments in 2022 which are relevant to ground 2 of the summons.
Prior to the amendments in 2022, the NSW National Law contained the following provision: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note - This section is an additional New South Wales provision.
This provision applied to the co-regulatory arrangements in place in NSW in substitution for those in Pt 8 of the National Law.
The Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld) (the Queensland Amendment Act), which commenced on 21 October 2022, inserted s 3A into the Schedule and which was thus adopted in the Queensland National Law and also picked up in some of the other participating jurisdictions (i.e., Victoria, Tasmania, South Australia and the Territories) (but not by NSW and WA), to now read (relevantly): 3A Guiding principles (1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount - (a) protection of the public; (b) public confidence in the safety of services provided by registered health practitioners and students. …
The Explanatory Note to the Queensland Amendment Act states (emphasis added): The Bill inserts a new paramount principle making protection of the public and public confidence in the safety of services provided by registered health practitioners and students paramount considerations. This places an explicit legislative obligation on entities performing functions under the National Law to place protection of the public and public confidence foremost in all decisions and actions…
New South Wales elected not to adopt these changes. The NSW version of s 3A was introduced by way of a Henry VIII provision in the form of the Health Practitioner Regulation (Adoption of National Law) Regulation 2022 (NSW), (the NSW Amending Regulation). This was published in the Gazette on 11 November 2022, but was expressed to commence on the same date as the Queensland provisions (i.e., 21 October 2022).
The NSW Amending Regulation renumbered the previous s 3A as s 3B (without otherwise altering the text), and inserted a new s 3A as follows: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that - (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example - Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 4 provides that an entity which has functions under the NSW National Law "is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A".
The Explanatory Note to the NSW Amending Regulation simply states: …this Regulation - (a) modifies certain amendments made by the Queensland Amendment Act by amending the Health Practitioner Regulation (Adoption of National Law) Act 2009, Schedule 1, and …

(a) Extension of time

The plaintiffs require an extension of time if their judicial review summons was filed more than three months after the date of the impugned decision. There were three possible dates on which the impugned decision might have been made: 22 February 2023 when the decision was made to adopt the 2023 Guidelines; 3 April 2023 when an advance copy of the 2023 Guidelines was published online; or 1 July 2023 when the 2023 Guidelines came into effect. The Medical Board accepted that the earliest time at which the plaintiffs could reasonably have become aware of its decision to approve the 2023 Guidelines was when the Medical Board announced on 3 April 2023 its intention to make new guidelines.
In contrast, the plaintiffs claim that time should run from the date on which the 2023 Guidelines commenced, namely 1 July 2023.
The Medical Board opposed an extension of time, pointing to the lack of any evidence explaining the delay. It also claimed that it was likely that medical practitioners will have acted in accordance with the 2023 Guidelines and would, therefore, be prejudiced if the judicial review application was permitted out of time.
As the plaintiffs acknowledged in their written submissions, the real object of their challenge relates not only to the 2023 Guidelines themselves (which commenced on 1 July 2023), but the anterior decision of the Medical Board to publish the 2023 Guidelines, which may also need to be challenged. They submitted, however, that the date of the Medical Board's decision to approve the 2023 Guidelines was not clear. This is because, although the Medical Board claimed that the decision to issue the 2023 Guidelines was made on 22 February 2023, an advance copy of the guidelines was not published until 3 April 2023.
In any event, the plaintiffs advanced the following submissions in support of time being extended: 1. The relatively minor length of the delay, having regard to the fact that the plaintiffs only became aware of the Medical Board's decision on 3 April 2023 (when the Medical Board issued its press release and uploaded advance copies of the guidelines on its website). 2. The plaintiffs have professional interests of both a pecuniary and non-pecuniary nature in testing the validity of the 2023 Guidelines, which is also a matter of public interest. 3. The Medical Board adduced no evidence of any delay causing prejudice either to it or to third parties. 4. No party could have standing until the 2023 Guidelines were published on 1 July 2023.
The impugned decision date is, most likely, 3 April 2023 (to the extent that the date of the decision is capable of being precisely identified). This is the date on which the decision to issue the 2023 Guidelines became publicly known. The plaintiffs' submissions on why an extension of time should be granted should be accepted. The case raises important issues of public interest and any delay in bringing the challenge is minimal. The Medical Board's contention that time should not be extended because of possible prejudice to third parties is somewhat ironic. It does not sit comfortably with its primary position that the 2023 Guidelines are not binding.
Time should be extended to enable the judicial review challenge to be determined.

(i) Ground 1

There are two aspects to ground 1. The first is whether the 2023 Guidelines are ultra vires the National Law in its entirety, which turns on whether, viewed objectively, they fall within the true nature and purpose of the Law (see Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 at [156] per Leeming JA, Meagher JA agreeing). The second aspect of ground 1 is whether the 2023 Guidelines were issued for an improper or unauthorised purpose.

(A) Are the 2023 Guidelines ultra vires?

The plaintiffs identified the relevant questions here as: 1. whether the guideline-making power in s 39 is one granted to make rules rather than suggestions or guidance; and 2. if so, the 2023 Guidelines are rules and therefore ultra vires.
As noted, one of the functions of a National Board is to develop and approve "standards, codes and guidelines" for the health profession, including the approval of accreditation standards, the development of registration standards, and the "development and approval of codes and guidelines that provide guidance to health practitioners registered in the profession".
As noted, the direct source of the Medical Board's power to issue guidelines is s 39 of the National Law (see at [27] above). Neither "code" nor "guideline" are defined terms. This is in contrast with the concept of "registration standards" which a National Board must develop in accordance with the duty imposed by s 38. "Registration standard" is defined in s 5 to mean a registration standard developed by a National Board under s 38. In contrast with codes or guidelines, which may be developed and approved by a National Board, registration standards about inter alia the registration, or renewal of registration, of health professionals must be approved by the Ministerial Council (see s 12). This indicates that they may have a different and higher status than codes or guidelines.
Although an approved registration standard, as well as a code or guideline approved by a National Board, is admissible in proceedings as evidence of what constitutes appropriate professional conduct or practice for the health profession (see s 41), there are other provisions of the National Law which suggest that registration standards have a mandatory effect (see, e.g., ss 52(1)(b) and (e); 65(1)(e) and 82(1)(c)(i)(E)). It is not necessary to express a final view but these provisions strongly indicate that registration standards have a higher status and effect than a code or a guideline.
I accept that the word "guidelines" ought to be given its ordinary meaning unless a contrary intention is manifest in the legislation. The plaintiffs drew attention to Hill J's leading judgment in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287. The National Health Act 1953 (Cth) created a scheme for the approval of pharmacists to provide pharmaceutical benefits from nominated premises. The decision whether or not to grant such an approval was conferred upon the Secretary of the Health Department. Approval was to be given only where the Pharmacy Restructuring Authority recommended that this occur. The legislation required the Minister to determine guidelines, which the Authority was obliged to comply with when making a recommendation.
In Smoker, the relevant guideline was expressed in terms which directed the Authority not to recommend approval of a pharmacist in respect of nominated pharmaceutical premises located within 5 kilometres of an already approved premises. The question was whether this instrument was authorised by the statutory provision which required the Minister to determine "guidelines". Notwithstanding that the instrument used mandatory language in directing the Authority not to recommend approval in the circumstances described above, the guideline was held to be valid.
Hill J identified an "inherent tension" between the concept of a "guideline" on the one hand and a mandatory requirement that the "guidelines" be complied with, on the other hand. His Honour referred to Norbis v Norbis (1986) 161 CLR 513 at 520; [1986] HCA 17 per Mason and Deane JJ, who described the term "guidelines" as denoting "rules or standards which are not binding and may be relaxed when it is expedient to do so in order to do justice in the particular case", when used in the bureaucratic and administrative world. Hill J commented at 299 that a legislative command that an agency "must comply with the relevant guideline" suggested that the guidelines were mandatory.
The plaintiffs in the present proceeding relied upon this approach in submitting that the frequent use of the word "must" in the 2023 Guidelines indicated that they are rules and not guidelines.
In Smoker, Hill J was strongly influenced by the fact that there was an agreement between the Pharmacy Guild of Australia and the responsible Minister which preceded the creation of the relevant legislative scheme. That agreement made explicit reference to an approval being refused to a pharmacy located within 5 kilometres of existing approved pharmaceutical premises. The guidelines were held to be valid despite their mandatory effect and even though Hill J observed that they should more properly be described as rules which operated to circumscribe the Authority's discretion.
I do not view Smoker as assisting the plaintiffs' case. It turned very much on differently worded legislation and different circumstances. But Smoker does highlight the significance of the distinction between guidelines and rules. That distinction should be accepted but the critical issue is whether on its proper construction an impugned instrument constitutes guidelines or rules.
The plaintiffs here submitted that s 41 of the National Law is relevant in determining the scope of the power to develop and approve guidelines under s 39. As noted, s 41 provides that an approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in disciplinary proceedings as evidence of what constitutes appropriate professional conduct or practice for the health profession. Thus, in determining whether a practitioner's practice and/or conduct is "unprofessional conduct" or "professional misconduct" for the purpose of the National Law, reference is to be made to whether the conduct is "substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience" (see the definition in s 5) (the position is broadly the same under NSW's co-regulatory arrangements). The plaintiffs submitted that a distinction had to be drawn between standards that had to be complied with (being the standards which arise in disciplinary proceedings) and guidelines which are evidence of appropriate practice which, in the Medical Board's view, would meet those standards. Thus, having regard to s 41, a "guideline" merely provides "guidance" to practitioners regarding the standards of professional conduct.
The plaintiffs also noted that the only code approved by the Medical Board is one titled "Good medical practice: a code of conduct for doctors in Australia" (the Code). The Code states that it does not set new standards but rather consolidates standards that have long been at the core of medical practice. The plaintiffs submitted that even though the Code sometimes uses mandatory language, that merely reflects what is already accepted in the profession as being mandatory.
The plaintiffs submitted that the Medical Board's guideline-making power should not be construed as empowering it to set the standard of appropriate practice because the Board does not have a power to give commands or prohibitions with which medical practitioners have to comply. Rather, the power to make guidelines under s 39 is a power to provide guidance or suggestions as to how health practitioners can best comply with already-accepted and expected standards of practice.
The plaintiffs contended that the following features of the 2023 Guidelines demonstrate that they are rules and therefore beyond the functions or powers stipulated in ss 35 and 39 of the National Law: 1. Although both the Code and the previous iterations of the guidelines use mandatory language (such as the word "must" in several clauses), the plaintiffs said that they were generally uncontroversial and are consistent with accepted professional standards, such as the need for informed consent. The plaintiffs acknowledged that it was appropriate to use mandatory language with respect to matters that were already mandated, such as the unethical provision of financial inducements. 2. The plaintiffs contended that it was significant that the 2023 Cosmetic Surgery Guidelines frequently substituted the word "must" for the previous use of the word "should", including: (a) the requirement for a referral an independent medical practitioner (i.e., not the cosmetic surgeon who will carry out the procedure), with restrictions on who that referral may be from: cl 2.1; (b) the requirement for screening using a validated tool for a certain psychiatric conditions such as body dysmorphic disorder: cl 2.4-2.5; (c) a requirement that there be two preoperative consultations, one of which must be in-person: cl 3.1-3.3; (d) prescriptive changes to the information provided as part of the consent process: cl 5.1; (e) a change to the cooling off period: cl 3.8; (f) a requirement to be personally present in a location for 24 hours postoperatively: cl 6.3; and (g) a requirement that surgeons comply with guidance provided for anaesthetists: cl 6.4. 1. Similarly, in cl 2.3 of the 2023 Cosmetic Advertising Guidelines, it is stated that all medical practitioners advertising cosmetic surgery "must include clear and unambiguous information about their qualifications and type of medical registration" and that particulars of that information be provided. The plaintiffs submitted that this is no longer a guideline as to what will or not be false or deceptive, but instead amounts to a prescriptive rule. 2. In support of the plaintiffs' case, reference might also be made to cl 3.1 of the 2023 Cosmetic Advertising Guidelines, which states that cosmetic surgery advertising "must not offer incentives, gifts, discounts or inducements that would encourage people to have cosmetic surgery". A similar statement appears in cl 4.1, where it is stated that cosmetic surgery advertising "must not use testimonials due to their potential to create unrealistic expectations of beneficial treatment".
When these selective statements are read in isolation or even cumulatively, they do appear to provide some support for the plaintiffs' claim that the term "guidelines" is a misnomer, and the two publications are in fact mandatory rules. For the following reasons, however, I do not accept the plaintiffs' ultra vires claim. First, as was common ground, an objective test applies in determining whether the 2023 Guidelines are properly characterised as guidelines or rules. In those circumstances, no significance attaches to the fact that, ultimately, the Medical Board did not seek to tender a copy of its statement of reasons which contained subjective statements as to the proper characterisation of the 2023 Guidelines.
That is not to say that the purposes for which the 2023 Guidelines were made are irrelevant to the ultra vires claim. The purposes for which the Medical Board can develop or approve guidelines for the health profession are set out in s 35(1)(c) (see at [24] above). They include making guidelines which provide guidance to registered health practitioners. This is reinforced by the terms of s 39(a). But guidelines may also be developed and approved by the Medical Board about matters relevant to the exercise of its functions (see s 39(b)). It is notable that the power conferred by s 39(b) is not limited to the provision of "guidance", in contrast with the position under s 39(a). I will defer discussion of the question of the purpose or purposes for which the 2023 Guidelines were developed and approved to the consideration of the second part of ground 1 under the heading "Improper or unauthorised purpose claim".
Secondly, context is another relevant matter. The following aspects of the 2023 Guidelines are relevant in providing context for the task of characterisation (many of these aspects are also relevant to an assessment of the text of both those publications, noting additionally that each publication must be read as a whole).

(a) 2023 Cosmetic Surgery Guidelines

The Introduction includes a statement that the guidelines "aim to inform registered medical practitioners and the community about the Board's expectations of medical practitioners who perform cosmetic surgery and non-surgical cosmetic procedures in Australia". Under the heading "How will the Board use these guidelines?", express reference is made to the effect of s 41 of the National Law, namely that an approved registration standard or a code or guideline approved by the Medical Board is admissible in proceedings under the National Law or a law of a co-regulatory jurisdiction as evidence of what constitutes appropriate professional conduct or practice for the profession.
Significantly, under the same heading, it is further stated that the guidelines can be used to assist the Medical Board in its role in protecting the public, by setting and maintaining standards of medical practice and if "a medical practitioner's professional conduct varies significantly from these guidelines, the practitioner should be prepared to explain and justify their decisions and actions".

Viewed as a whole and, importantly, in the context of all the contents of the publication, these statements fall short of indicating that the 2023 Cosmetic Surgery Guidelines are binding on medical practitioners. On the contrary, they generally serve to underline the fact that the publication provides guidance to such practitioners. This is particularly evident in the last statement referred to immediately above, where it is made clear that if particular conduct varies significantly from any part of the guidelines, the medical practitioner is on notice that they should be prepared to explain and justify their position and actions. That is not the language of a binding direction as it contemplates that a medical practitioner may be able to explain and justify their conduct even if it is not compliant with any part of the Guidelines. This undermines the significance which the plaintiffs attach to mandatory language being directed to matters which are already seen by the profession to be mandatory, as opposed to other matters.

(b) 2023 Cosmetic Advertising Guidelines

Similar statements are contained in these Guidelines:

There is a statement in the Introduction that these guidelines "aim to inform registered medical practitioners and the community about the Board's expectations of medical practitioners who perform cosmetic surgery and non-surgical cosmetic procedures in Australia".
It is stated that the 2023 Cosmetic Advertising Guidelines provide "specific guidance" for registered medical practitioners who advertise cosmetic surgery and are in addition to other specified publications, including the Code and broader advertising guidelines which apply to the advertising of a regulated health service. Medical practitioners are told that they "should also refer to other relevant guidelines such as the Board's guidance on telehealth consultations". It is also stated that medical practitioners who advertise cosmetic surgery "must also comply with therapeutic goods advertising and laws governing Australian Consumer Law". This part of the Guidelines then contains the following three paragraphs: These guidelines reflect good practice when advertising cosmetic surgery due to the unique risks associated with cosmetic surgery and advertising. They set out types of advertising of cosmetic surgery the Board considers will contravene section 133 of the National Law and what the Board considers constitutes appropriate professional conduct when advertising cosmetic surgery. In some areas these guidelines are intentionally more specific than the broader advertising guidelines as these guidelines provide practitioners with the Board's position on particular issues that are specific to advertising cosmetic surgery. Where there is a conflict between these guidelines, the broader advertising guidelines, and/or Good medical practice, medical practitioners should comply with the most specific guidance.
Under the heading "How will the Board use these guidelines?", express reference is made to s 41 of the National Law and how an approved registration standard or a code or guideline approved by the Medical Board is admissible in proceedings against a registered medical practitioner as evidence of what constitutes appropriate professional conduct or practice for the profession. The following two paragraphs also appear under that heading: These guidelines can be used to assist the Board in its role of protecting the public, by setting and maintaining standards of medical practice. If a medical practitioner's professional conduct varies significantly from these guidelines, the practitioner should be prepared to explain and justify their decisions and actions. Serious or repeated failure to meet these guidelines may have consequences for a medical practitioner's registration.
Under the heading "Good practice in cosmetic surgery advertising", it is stated that the guidelines "set out what the Board considers is good practice when advertising cosmetic surgery". It is also stated that it is not possible to provide an exhaustive list of advertising that will or will not meet the guidelines, but the Guidelines provide examples, terms and phrases which are inappropriate in advertising. These are described as "practical" examples to help an understanding of the requirements and are not the only examples, terms and phrases which would be considered inappropriate.

I consider that these statements reinforce the fact that, notwithstanding that some mandatory language is used in some parts of the Guidelines (including the term "must" which, it might be added, was also used in earlier guidelines), the 2023 Cosmetic Surgery Guidelines provide guidance and are not binding on medical practitioners as would be the case with rules. It is important to reiterate that each of the Guidelines which constitute the 2023 Guidelines needs to be read as a whole.
Thirdly, as an aspect of context, it is relevant to note that the March 2022 consultation paper for the review culminating in the Brown Report expressly acknowledged that "guidelines do not act as legally enforceable regulations".
Fourthly, I accept the Medical Board's submission that, where an instrument made pursuant to a statutory power is open to two constructions (one of which would be within the empowering provision and the other ultra vires), the first construction should be preferred and adopted (see Environment Protection Authority v Condon as Liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [64] per Leeming JA (Bathurst CJ and McColl JA agreeing)).
Fifthly, the plaintiffs cited Lynch v Minister for Human Services and Health (1995) 61 FCR 515 in support of the contention that if a power, properly construed, does not extend to issuing mandatory rules, then mandatory language may be ultra vires. I reject that contention. Lynch is distinguishable. It involved the Minister promulgating principles pursuant to a statutory power which conferred a decision-making role upon an inspection agency.
The critical feature in Lynch was that the relevant statute did not permit the conferral of a decision-making power upon a body such as an inspection agency. The Minister was empowered there to determine principles to be implied in the exercise of powers concerning ministerial approval of premises as an accredited pathology laboratory (s 23DNA of the Health Insurance Act 1973 (Cth)). The Minister was obliged under s 23DN(3) of that Act to apply any such principles as were in force at that time in exercising the approval power. The ministerial principle in cl 4.2 provided that premises shall not be approved as an accredited pathology laboratory unless the applicant has provided evidence that the premises have been inspected by an agency which has reported that the premises comply with the relevant standards. The National Association of Testing Authorities was approved as an inspection agency and, having inspected the applicant's premises and operations, reported favourably otherwise than to say that it was not satisfied that certain aspects of the operations complied with relevant standards.
Davies and Lehane JJ held that the Minister was not empowered by s 23DNA of the Act to confer a decision-making role upon an inspection agency. Their Honours described s 23DNA(1) as providing for the promulgation of principles to be applied in exercising the Minister's approval power, but not for the conferral of a decision-making power upon another body. That is far removed from the circumstances of the present case.

(B) Improper or unauthorised purpose claim

As to the improper or unauthorised purpose claim, this ground overlaps to some extent with the ultra vires claim in the sense that the plaintiffs alleged that the 2023 Guidelines were made not only for the purpose of providing guidance for the profession, but also for the unauthorised purpose of reforming medical regulation. They submitted that the Medical Board has misapprehended the scope of its guideline-making function and power under ss 35 and 39, by viewing them as involving a rule-making power which allowed it to regulate the profession.
The plaintiffs acknowledged that the object of the legislation is to establish a national registration and accreditation scheme for the regulation of health practitioners. They emphasised, however, that the regulatory functions in s 35 are distinct from those related to discipline (being the functions set out in ss 35(1)(g)-(h)), while also recognising that different arrangements apply in NSW and Queensland for disciplinary functions.
The plaintiffs relied upon the following passage from Latham CJ's judgment in Brownells Ltd v Ironmongers' Wages Board (1950) 81 CLR 108 at 119-120; [1950] HCA 3 (emphasis added, footnote omitted): But if a power is conferred by statute upon a body in such terms that it appears that the power was conferred for a particular purpose, the power must be exercised only for that purpose, and if it was shown that the power was exercised for a purpose which was "beyond the scope of or not justified by the instrument creating the power"…, then such an exercise of the power will not be valid.
For the following reasons, I reject the plaintiffs' position. First, as stated above, it is evident from the text of s 39 that (in contrast to the position posited in Brownells) the Medical Board's power to develop and approve codes and guidelines is not confined to a single purpose. One purpose, as stated in s 39(a), is "to provide guidance to the health practitioners it registers". But another purpose for developing and approving codes and guidelines is provided by s 39(b), namely developing and approving codes and guidelines about other matters relevant to the exercise of its functions (which functions are set out in s 35). The Medical Board's power to develop and approve a code or guideline under s 39(b) is not confined to providing guidance (as is the case under s 39(a)). It is unnecessary to determine the correctness of the Medical Board's submission in oral address that paragraph (b) provides an alternative source for the validity of the 2023 Guidelines in the event that the Court were to hold them ultra vires under paragraph (a).
Secondly, I am not satisfied that the plaintiffs have discharged their burden of demonstrating that the 2023 Guidelines were developed and approved for an improper or unauthorised purpose. Indeed, as highlighted by the analysis above of the plaintiffs' ultra vires claim, there are many features of the 2023 Guidelines which indicate that their purpose was to provide guidance and not to create legally binding rules.

(ii) Ground 2

Ground 2 of the summons claims that the Medical Board's decision to publish the 2023 Guidelines was infected by jurisdictional error because the Medical Board considered an irrelevant consideration and/or failed to consider a relevant consideration, being s 3A of the NSW National Law or the equivalent provisions in the other jurisdictions. The claim relating to an irrelevant consideration was not developed in the plaintiffs' oral or written submissions. Rather, the focus was very much on the Medical Board's alleged failure to consider one or more mandatory relevant considerations.
The plaintiffs submitted that the Medical Board had failed to take into account a mandatory relevant consideration, namely the effect of the Queensland Amendment Act, which provided that the "main guiding principle" of the national registration and accreditation scheme would be both the protection of the public and public confidence in the safety of services provided by registered health practitioners and students, which matters were both described as "paramount" (see at [35] above). This provision introduced s 3A into the Schedule and extended it to the other participating jurisdictions, other than NSW and Western Australia (the Queensland National Law, as noted above, replaced its previous s 3A with the Schedule's new s 3A).
NSW elected not to adopt these changes. Instead, it introduced a different version of s 3A by the NSW amendment (which is set out at [38] above). The new s 3A in the NSW National Law provides that the "main guiding principle" of the scheme is that "the protection of the health and safety of the public must be the paramount consideration". Thus the reference to "public confidence" in the Queensland Amendment Act was not adopted in NSW. The plaintiffs claimed that there was a significant difference between the provisions and the Medical Board failed to recognise this difference or take it into account in its decision to approve and publish the 2023 Guidelines.
The plaintiffs correctly acknowledged that, for them to succeed on this ground, they needed to establish that the Medical Board's failure to take into account a mandatory consideration constituted a material error, in the sense that there is a realistic possibility that the Board would have made a different decision absent the alleged error. They submitted, however, that unlike decisions such as migration decisions, which are binary in nature, the "different decision" for the purposes of establishing materiality is "a continuum". They contended that, in these circumstances, it would be sufficient for the purposes of the requirement of materiality to show that, if the Medical Board had not considered a mandatory relevant consideration, it may well have decided to issue different guidelines which omitted one or more of the impugned clauses.
The plaintiffs also contended that because the 2023 Cosmetic Surgery Guidelines placed restrictions on the practice of surgery, it was necessary for the Medical Board to consider the guiding principle in s 3A(2)(c), namely that restrictions on the practice of a health professional are to be imposed under the scheme "only if it is necessary to ensure health services are provided safely and are of an appropriate quality" (the necessity principle), and to give this matter appropriate weight as against the paramount consideration.
For the following reasons, I do not accept those contentions. First, and foremost, I am not satisfied that the plaintiffs (who carry the burden) have demonstrated on the balance of probabilities that the matters were not considered. On the contrary, parts of the 2023 Guidelines strongly suggest that the protection of the public and public confidence and the safety of relevant services were considered. Thus the 2023 Cosmetic Surgery Guidelines contain the following statements: 1. The guidelines "can be used to assist the Board in its role of protecting the public". 2. A medical practitioner "must ensure that the care and wellbeing of their patient is their primary consideration" (cl 1.1). 3. A medical practitioner must decline to perform a particular surgery "if they believe that it is not in the best interests of the patient" (cl 2.7). 4. A medical practitioner must take reasonable steps to ensure the patient understands information provided to them so that informed consent can be obtained (cl 5.4). 5. The medical practitioner who performs the surgery is responsible for ensuring that any other person participating in the patient's care has appropriate qualifications, training and experience, and is adequately supervised as required (cl 7.1). 6. Surgery must be performed only by medical practitioners with the appropriate knowledge, training and experience to perform the surgery and deal with all routine aspects of care and any likely complications (cl 9.1). 7. A medical practitioner must not make claims about their qualifications, experience or expertise that could mislead patients by implying that the practitioner is more skilled or more experienced than is the case (cl 10.1).
To similar effect, the 2023 Cosmetic Advertising Guidelines contain the following statements: 1. Good practice cosmetic surgery advertising is honest, balanced, realistic and informative, protects the dignity of patients and does not exploit patients. 2. Advertising of cosmetic surgery can mislead the public, create unrealistic expectations, lead patients to seek out unnecessary and inappropriate cosmetic surgery, downplay the seriousness or risks of the surgery, and lead to poor healthcare decisions. 3. A medical practitioner's duty of care to their patient is the paramount consideration in all practitioner-patient interactions, including through advertising (cl 1.1). 4. A medical practitioner advertising cosmetic surgery must put their patients first (cl 1.3). 5. Medical practitioners must prioritise patients' interests, dignity and privacy ahead of marketing or advertising opportunities (cl 6.10).
Secondly, I accept the Medical Board's submission that regard may also be had to material which preceded the publication of the 2023 Guidelines to indicate that it considered the health and safety of the public as well as public confidence in the profession. For example: 1. The March 2022 consultation paper preceding the Brown Report stated that the review would examine "patient safety issues" and make recommendations about actions "that will better protect the public". 2. The consultation paper further stated that "[p]ublic safety is the number one priority for Ahpra and the National Boards". 3. The review was commissioned "in light of significant patient safety concerns that have been raised". 4. The Brown Report stated that "fundamental to public safety in the cosmetic surgery sector is a strong reporting culture". 5. The Brown Report considered whether the then existing cosmetic surgery guidelines "contribute to safe practice that is within a practitioner's scope, qualifications, training and experience". 6. An agenda paper prepared for the Medical Board in September 2022 considered that the proposed changes to the guidelines "should improve patient safety for consumers who seek cosmetic surgery" and that "the Board is responsible for…ensuring patients who have surgery in Australia are safe". 7. As part of the further consultation on the revised guidelines that followed the Brown Report, the Medical Board stated that it expected that "the proposed standards and guidelines will improve patient and consumer safety, particularly for vulnerable members of the community".
Thirdly, I accept the Medical Board's submission that a reasonable inference can be drawn that the Medical Board, which is an entity created by the National Law in each jurisdiction, was aware of the content of the National Law in each of those jurisdictions. To reinforce the reasonableness of drawing such an inference, it is notable that the Introduction to both 2023 Guidelines refer to provisions of the National Law "as in force in each state and territory". Moreover, it is notable that there was an agenda paper for the August 2022 joint meeting of the National Boards and Ahpra which provided a detailed analysis of the Bill which was to become the Queensland Amendment Act. Specific mention was made of the fact that the Bill proposed the insertion of a new paramount principle into the Schedule of the Queensland Act to provide that the protection of the public and public confidence in the safety of services provided by registered health practitioners and students are paramount considerations. Moreover, explicit mention was made of the fact that NSW would need to make a regulation to give effect to the amendments in that jurisdiction (Exhibit 1).
Fourthly, I do not attach any particular significance to the fact that, unlike the position in Queensland etc, the NSW National Law does not contain an explicit reference to "public confidence". I accept the Medical Board's submission that there is no reason to believe that it was unaware of differences in the National Law between various jurisdictions (including NSW and Queensland). Moreover, I consider that the concept of "public confidence" is necessarily implicit in the objective of protecting the health and safety of the public (see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA).
Finally, there is no substance in the plaintiffs' claim that the Medical Board failed to consider the necessity principle. As the Medical Board pointed out, a guiding principle to the effect that "restrictions on the practice of a health profession are to be imposed…only if it is necessary to ensure health services are provided safely" has been present in all versions of the National Law, before and after the 2022 amendments. There is no force in the contention that the 2022 amendments to the National Law indicate that the Medical Board failed to consider this guiding principle.

Conclusion

For all these reasons, an extension of time should be granted but the summons will be dismissed, with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2024

Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022(Qld)

(March 2022) Explanatory Note, Health Practitioner Regulation (Adoption of National Law) Regulation 2022(NSW)

Health Insurance Act 1973(Cth)ss 23DN, 23DNA

HEADNOTE [This headnote is not to be read as part of the judgment] The plaintiffs seek judicial review of a decision of the Medical Board of Australia (Medical Board) to issue two guidelines for registered medical practitioners relating to cosmetic surgery and procedures (the 2023 Cosmetic Surgery Guidelines) and the advertising of cosmetic surgery (the 2023 Cosmetic Advertising Guidelines) respectively (together, the 2023 Guidelines). The 2023 Guidelines were published on 1 July 2023, which is also the date on which they took effect. The Health Practitioner Regulation National Law (National Law) to which the proceedings relate is the product of an intergovernmental agreement dated March 2008. Queensland is the host jurisdiction, and the National Law is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (Queensland Act). That Schedule was subsequently adopted in various States and Territories but, following amendments made in 2022 in NSW (for example), amendments to the Schedule in the Queensland Act no longer take effect as law in NSW unless a regulation is made in NSW adopting, with or without modification, those amendments. In brief, although the National Law is intended to be a national scheme, there are in fact four versions of the National Law. The issues for determination were: (i) Whether an extension of time to file the summons should be granted under r 59.10 of the Uniform Civil Procedure Rules 2005 (UCPR). (ii) Whether the 2023 Guidelines are properly characterised as rules, and not guidelines, and are therefore ultra vires the Medical Board's functions and powers under ss 35 and 39 of the National Law. (iii) Whether the 2023 Guidelines were issued for an improper or unauthorised purpose. (iv) Whether the decision to publish the 2023 Guidelines was infected by jurisdictional error because the Medical Board failed to consider the following mandatory relevant considerations: (a) the difference between s 3A of the Health Practitioner Regulation National Law (NSW) 2009 (NSW National Law) and the equivalent provisions in the other jurisdictions, specifically the lack of reference to "public confidence" as a "main guiding principle"; and (b) as to the 2023 Cosmetic Surgery Guidelines, the guiding principle in s 3A(2)(c) (which provides that restrictions on the practice of a health professional are to be imposed only if necessary to ensure health services are provided safely and to an appropriate quality). Griffiths AJ held, dismissing the summons, with costs: As to issue (i) (1) Time should be extended under r 59.10 of the UCPR for the filing of the summons: at [47]. The case raises important issues of public interest and any delay in bringing the challenge is minimal: at [46]. As to issue (ii) (2) The 2023 Guidelines are not ultra vires: at [78]. They need to be construed objectively and in light of their respective contexts as a whole: at [63], [65]. Statements made in each of the 2023 Guidelines should not be read in isolation or selectively: at [63]. There are several reasons why, objectively construed, the 2023 Guidelines are not binding on medical practitioners (in contrast with rules): at [64]-[78]. Rather they provide guidance to such practitioners: at [68]. Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 considered. (3) The use of mandatory language in the 2023 Guidelines is not relevantly determinative: at [71]. Lynch v Minister for Human Services and Health (1995) 61 FCR 515 distinguished. (4) Contrary to the plaintiffs' contention, the Medical Board's power to develop and approve guidelines under s 39 which "influence" medical practice by making its expectations clear is consistent with s 3A(2)(a1) of the NSW National Law (and s 3A(2)(aa)(i) and (ii) of the Schedule to the Queensland Act): at [75]. As to issue (iii) (5) The Medical Board's power to develop and approve guidelines is not confined to the single purpose of providing guidance under s 39(a). Another purpose is provided by s 39(b), namely developing and approving guidelines about other matters relevant to the exercise of its functions: at [82]. Brownells Ltd v Ironmongers' Wages Board (1950) 81 CLR 108; [1950] HCA 3 considered. (6) The plaintiffs failed to discharge their burden of demonstrating that the 2023 Guidelines were developed and approved for an improper or unauthorised purpose. There are many features of the 2023 Guidelines which indicate that their purpose was to provide guidance and not to create legally binding rules: at [83]. As to issue (iv) (7) The plaintiffs failed to demonstrate on the balance of probabilities that the relevant matters were not considered: at [89]. First, parts of the 2023 Guidelines strongly suggest that the protection of the public and public confidence and the safety of relevant services were considered: at [89]. Secondly, material which preceded the publication of the 2023 Guidelines indicates that the Medical Board considered the matters: at [91]. Thirdly, a reasonable inference can be drawn that the Medical Board was aware of the content of the National Law in each of the jurisdictions: at [92]. Fourthly, no particular significance attaches to the fact that, unlike the position in Queensland and other jurisdictions, the NSW National Law does not contain an explicit reference to "public confidence": at [93]. That concept is necessarily implicit in the objective of protecting the health and safety of the public: at [93]. Fifthly, there is no substance in the plaintiffs' claim that the Medical Board failed to consider the "necessity principle": at [94].

(2021) 106 NSWLR 520

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (11)

Cited By (4)