In April this year, AHPRA
revised its approach to advertising compliance and enforcement. Under this new
strategy a press release from AHPRA’s reported an Australian-first, as Wellness
Enterprises Pty Limited, which traded as Australian Male Hormone Clinic, was
fined $127,500 plus costs after being found guilty and convicted of 17 charges
related to unlawful advertising of regulated health services.
Charges brought by AHPRA
followed advertisements the business published in newspapers around Australia
between February and August 2017 for treatment of testosterone deficiency.
The full page ‘advertorial’
style advertisements made a number of claims about the benefits of treatment,
including increased energy, focus, masculinity and strength, and ability to
satisfy sexual partners. AHPRA challenged the validity of the claims citing
best available evidence.
In the Downing Centre Local
Court in Sydney on 3 October, the corporation was found guilty and convicted on
17 charges. The magistrate cited the seriousness of the offences in fining the
corporation $7,500 on each charge, totalling $127,500. The corporation was also
ordered to pay court costs of $3,000 and professional costs up to $3,000.
This is the first time that a
corporation, not an individual health practitioner, has been convicted
following advertising charges brought by AHPRA under section 133 of the
AHPRA acknowledges that most practitioners want to comply
with their professional obligations. The main focus of the strategy is to make
compliance easier for practitioners wanting to change their advertising.
For low risk breaches against individual practitioners,
AHPRA will take an approach that supports voluntary compliance. When a
complaint is received AHPRA will assess it and, if it is low risk and
non-compliant by reference to AHPRA’s advertising guidelines, it will write to
the practitioner and give them the opportunity to rectify within 60 days. The
letter will have general information about the breach as well as resources to
assist the practitioner to comply.
After 60 days they will randomly audit practitioners who
have received a letter and if not compliant they will issue a show cause notice
which will have specific information about the breach by reference to the
advertising guidelines. If the practitioner does not rectify after this, then
the Board can impose advertising restrictions.
For practitioners with moderate risk breaches and those with
previous advertising complaints, the same process will be followed but there
will be targeted audits after the 60 days.In other words, practitioners
will get two opportunities to fix their advertising before escalation and
increased enforcement action.
High risk breaches or breaches by corporations will be
referred to the statutory offences team at AHPRA.
In NSW, AHPRA will follow a similar process but if the
practitioner does not rectify, AHPRA will refer to the NSW Medical Council as a
In Queensland, AHPRA has agreed with the Office of the
Health Ombudsman (OHO) that advertising breaches will be dealt with by AHPRA
and not the OHO.
For practitioners who are contracted or employed by corporations
and have limited control over the advertising, if they can demonstrate this to
AHPRA, AHPRA will refer to the statutory offence team rather than proceeding
against the practitioner.
We have seen a few of the initial warning letters come
through recently. If doctors and practices receive a letter from AHPRA
notifying them of a possible issue with their advertising, doctors
and practices need to address the issues raised by AHPRA to avoid further
action being taken. This is an
opportunity to seek advice from Avant to assist with compliance. We can find
out more about the specifics of the alleged non-compliance to get to the heart
of the issue.
Many practices unintentionally breach advertising laws
through the use of testimonials and social media. Avant’s Practice Medical Indemnity Insurance Policy* includes access to medico-legal advice and legal
costs to defend the practice. Avant’s Practitioner Indemnity Insurance Policy*
provides cover for breaches of consumer protection legislation which includes
those related to advertising.
AHPRA has updated its advertising
webpage which includes case studies and examples designed to assist health
practitioners check whether their advertising complies with the National Law.
AHPRA also publishes examples of non-compliant advertising common
to all regulated professions and this is a practical way to understand what
their expectations are.
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.
*Cover is subject to the terms,
conditions and exclusions of the policy. Please read and consider the Product
Disclosure Statement available at avant.org.au or contact us on 1800 128 268
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