It’s a fine line: advertising your practice while staying within the law

By: Ruanne Brell, Medico-legal Advisor and Josephine Montgomery, Medico-legal Advisor, Avant Law

Aug 3, 2017

Gone are the days when advertising medical services was completely taboo. However, there is still a tension between promoting your practice, particularly online, and complying with professional standards. Earlier this year, the Australian Health Practitioner Regulation Agency (AHPRA) outlined its approach to enforcing compliance with advertising standards. With a renewed focus on advertising compliance, and significant penalties for breach, it is important to understand what you can do to promote your practice while staying within the law.

What is advertising?

Advertising of healthcare services is covered under the Health Practitioner Regulation National Law 2009 (National Law). The definition of advertising under the National Law and regulations is very broad. It includes all forms of printed and electronic media that promotes a health service and includes any public communication using television, radio, billboards, pictorial representations, mobile communications and other displays, internet and social media. According to AHPRA, the aim of regulating advertising of healthcare services is to protect the public from false or misleading claims and to help ensure people can make informed decisions about their healthcare. Regulations are also aimed at any communications that might offer inducements or encourage indiscriminate or unnecessary use of health services. Areas to watch in particular are patient testimonials; before and after photographs; discounts, prizes and similar incentives; and use of protected specialist titles. We discuss these issues further below.

Testimonials

It is not acceptable for a medical practitioner to use testimonials in their own advertising.

Testimonials include all positive statements about the practitioner or practice as well as recommendations, or statements about the clinical aspects of a regulated health service.

While you are not required to remove positive comments from other platforms outside your control (such as ratings sites), you should not repost any compliments from social media platforms of other individuals or entities as these too will likely be seen as testimonials. Further, you should not encourage patients to post positive comments about you on any sites.

Rewards and inducements

Inducements, including rewards such as gift vouchers or discounts for referrals, are problematic because they may encourage indiscriminate or unnecessary use of health services. Discounts are only permitted if the full cost of the treatment is advertised and the associated terms and conditions of the discount clearly stated. Advertising payment plans, which are sometimes offered by medical practitioners for elective, non-Medicare billable procedures, should also be avoided to the extent they may be seen as encouraging indiscriminate use of health services.

Photographs and images

AHPRA’s Guidelines for Advertising Regulated Health Services identify a number of issues with using images, particularly before and after photographs. These may be misleading and could be seen to induce an unreasonable expectation of benefit. They also raise issues of privacy and consent. Patients may consent to the use of images but consent must be informed and free from any inducement. Live streaming of surgery by medical practitioners on social media platforms has recently been reported in sections of the media as becoming more commonplace. Even if patients are asked to consent prior to the procedure being performed, this practice is inherently risky as the patient is unconscious at the time of posting and unable to view any footage before it is published or to interrupt the live stream. If questions arose that consent to live streaming was linked to offers of discounts for treatment then this practice could also be in contravention of s133(b) of the National Law. Further, some medical colleges have policies which preclude the live transmission of surgery where the “operator could receive an additional fee or benefit, direct or indirect, for the performance of a live procedure”. This prohibition could apply to streaming of procedures on social media platforms which may be considered a form of advertising.

Other issues to watch

Another concern may be the use of ‘protected’ titles and endorsements. For example, unless you have completed suitable specialist training recognized by AHPRA and the Medical Board of Australia (MBA) you should not use as the term ‘specialist’ as this could mislead the public into thinking you hold the same level of expertise and training as a practitioner with AHPRA and MBA-recognised specialist training. Other regulators such as the Australian Competition and Consumer Commission and the Therapeutic Goods Administration also administer laws that regulate how medical practitioners advertise regulated health services and therapeutic goods. These are also addressed in the AHPRA Guidelines.

The approach being taken by AHPRA to breaches of the Guidelines

In April 2017 AHPRA outlined its advertising compliance strategy in a document Responsible advertising in healthcare: Keeping people safe. AHPRA has indicated it will adopt a risk-based and proportionate approach to its oversight of advertising of regulated health services. It will take strong action on breaches it considers raise concerns about actual patient harm, target particularly vulnerable patient groups or make misleading claims such as offering miracle cures.

Key tips for advertising:

• Review AHPRA’s Guidelines for Advertising Regulated Health Services to understand your responsibilities.
• Avoid using language or images which may mislead or cause a patient to have an unreasonable expectation of beneficial treatment.
• Do not use testimonials or repost positive comments from other social media platforms.
• Set your website and other social media platform settings so that users are unable to leave comments.

This article was first published in Medical Observer. Read the original article here.

More information

If you require advice on your obligations around advertising in your practice, visit our website or for immediate advice, call our Medico-legal Advisory Service (MLAS) on 1800 128 268. You can also read AHPRA’s Advertising: Strategy, legislation and guidelines.