Current concerns and The NSW Law Reform Commission’s Report into Young People and Consent to Health Care

The Regulation of the industry

The non-regulation of this growing area of cosmetic medicine is compounded heavily by advertising and marketing, following the legalisation of advertising for medical practitioners in 1994.

The NSW Law Reform Commission’s (the NSW LRC) Report into Consent & Young People.

The NSW LRC’s report focused on persons under the age of 18 and the laws which determine when they may make decisions about health care and when others must make those decisions for them. The NSW LRC reviewed the rules which regulate and impose restrictions upon the decision-making process for young people’s health care in New South Wales.

In that regard, consent is central to the terms of the review. The NSW LRC confirmed that consent to health care may mean several things and the report focused on the capacity of the person to consent. In general the law provides that a person must consent to health care before it may lawfully be provided.

Perhaps not surprisingly is the suggestion (in the report) that there is a growing demand for cosmetic surgery among young people. Indeed, the report notes that two State governments have considered legislative action as a result. In 2006, the NSW government was said to be considering introducing legislation to make it more difficult for teenagers to undergo cosmetic surgery following the revelations by a contestant on a reality television program.

As there is no statistical research confirming the increasing number of young people seeking procedures such as breast augmentation, liposuction and botox injections, it is difficult to know precisely the extent of the cause for concern. Indeed, the NSW LRC does note that procedures such as rhinoplasty (“nose job”), otoplasty (ear pinning) and removal of birthmarks (whilst properly considered cosmetic) are routinely performed to prevent embarrassment to the person.

The concept of regulation in respect of young people in this area of medicine is complex. The NSW LRC suggests a simple answer may be to require parental consent for such surgery. Similarly, it suggests that given both the cost and the unavailability of Medicare rebate, it may be reasonable to infer that most cosmetic surgery is being performed with parental consent.

The NSW LRC recommends that certain medical treatments, including cosmetic surgery should require legislative authorisation for young people. The NSW LRC considers cosmetic surgery as a “special medical treatment,” a concept which was accepted by the High Court in Marion’s case, (Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992)175 CLR 218, 237). Special treatment was defined in that case to include procedures which are “invasive, irreversible and major.”


Generally, it is the NSW LRC’s view that interests of young people coincide with those of the wider community all of whom would be well served by a holistic approach to regulation of this area of medical practice.

Discussion surrounding the practice of and access to cosmetic surgery has become increasingly prevalent in today’s society. As a result the issue of regulation has arisen and is an obvious concern for both the public and the practitioners in the field. As the NSW LRC make and publish recommendations and groups such as CHOICE investigate and release their results to the media, there will undoubtedly be further developments in relation to the regulation of cosmetic medicine.

Andrew Davey	Juliette Quinlivan
Director Unsworth Legal	Lawyer Unsworth Legal

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