Is your practice breaching advertising laws?

Jan 12, 2017

Many practices are unintentionally breaching national advertising laws through the use of testimonials and social media. Advertising breaches can have serious repercussions, leading to restrictions being imposed on a doctor’s registration and ability to practise and fines of up to $5,000 for an individual or $10,000 for a practice.

Regardless of whether your practice is advertising in print or via a website, radio, television or social media, practices must comply with the Health Practitioner Regulations National Law Act 2010 (National Law), so know your obligations when advertising your practice.

Testimonials

Testimonials are one of the most common areas where practices innocently breach advertising laws. Under the National Law, testimonials used to promote a doctor, nurse or a service are prohibited. This includes testimonials posted on practice websites or social media accounts, for example, a practice Facebook page.

Under the National Law, both solicited testimonials and unsolicited testimonials, for example, comments posted on the practice’s website by patients about a doctor, are banned and should be promptly removed. However, practices are not responsible for removing unsolicited testimonials published on websites or social media they do not control.

This prohibition does not prevent patients from sharing views through consumer and patients’ information sharing websites that invite public feedback/reviews about their experience.

View the Australian Health Practitioner Regulation Agency’s (AHPRA’s) Social Media Policy for more information.

Misleading or deceptive advertising

Practices who advertise in a way that could be considered false, misleading or deceptive can also be breaching advertising laws as well as national consumer protection laws. This can include advertising that only provides partial information or uses phrases like ‘lowest prices’ when advertising fees for services or price information in a misleading or deceptive way. The burden is on you to substantiate any claim you make that your treatments benefit patients. AHPRA’s advice is that if you do not understand whether the claims you have made can be substantiated based on acceptable evidence, then remove them from your advertising.

Check AHPRA’s Guidelines for advertising regulated health services for examples of false or misleading advertising.

Gifts and discounts

Any gifts, discounts or other inducements offered by the practice to attract a person to use the health service must state the terms and conditions of the offer.

Unreasonable expectations of treatment

Practices should not advertise in a way that creates an unreasonable expectation of treatment, for example using unsubstantiated scientific claims or promoting miracle cures.

When advertising surgical or invasive procedures, a warning statement is also required such as: ‘Any surgical or invasive procedure carries risks. Before proceeding, you should seek a second opinion from an appropriately qualified health practitioner’.

Advertising unnecessary use of health services

Advertising may also contravene the law if it encourages unnecessary or indiscriminate use of health services that lead consumers to use a health service that they do not need. For example, advertising that encourages consumers to improve their physical appearance with phrases such as ‘don’t delay’ or ‘achieve the look you want’ may breach the National Law.

Summary

You should review the content of your promotional and advertising materials regularly and ensure that your practice has policies in place that cover:

  • who determines what is appropriate content
  • who is responsible for reviewing content, and how often
  • responding to complaints
  • responding to social media enquiries, messages and emails.

Advertising must not:

  • make false, misleading or deceptive claims
  • offer an inducement such as a gift or discount (unless the relevant terms and conditions are included)
  • use testimonials to promote the service or business
  • create an unreasonable expectation of treatment
  • encourage the indiscriminate or unnecessary use of a regulated health service

View AHPRA’s Guidelines for advertising regulated health services or further information on advertising therapeutic claims.

Advertising must also comply with the Australian Competition and Consumer Commission and the Therapeutic Goods Administration.

Cover for unintentional breaches

Unintentional advertising breaches that occur in relation to your practice are covered by Avant’s Practice Medical Indemnity Policy* (subject to the terms, conditions and exclusions of the policy). It also covers legal fees and representation if an advertising breach results in an AHPRA investigation but does not cover fines or penalties.

If you are unsure whether your practice is breaching advertising laws, Avant provides medico-legal advice and resources. Visit the Avant Learning Centre.

*IMPORTANT The Practice Medical Indemnity Policy is issued by Avant Insurance Limited, ABN 82 003 707 471, AFSL 238 765. This policy is available at www.avant.org.au or by contacting us on 1800 128 268. Practices need to consider forms of insurance including directors' and officers' liability, public and products liability, property and business interruption insurance, and workers compensation.

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