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First prosecution of a healthcare corporation for unlawful advertising

Oct 18, 2017

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 National Law.

AHPRA’s approach

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 notification.

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.

Protecting members

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.

Further information

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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