Don’t get caught out: AHPRA warns doctors over advertising breaches


Doctors and practices are reminded of their obligations under the advertising guidelines and to remove any offending material if advised by the Australian Health Practitioner Regulation Agency (AHPRA), to avoid further action.

In 2017, AHPRA commenced an education campaign on the advertising requirements and restrictions that apply to doctors and healthcare organisations. In cases involving complaints about advertising, doctors were given 60 days to check and correct their advertising before AHPRA carried out a “comprehensive audit”.

The reminder comes after AHPRA recently sent warning letters to several doctors informing them that following the audit, their advertising continues to breach the Health Practitioner Regulations National Law Act 2010 (National Law).

Common problems include use of testimonials and advertising which creates an unreasonable expectation of beneficial treatment.

AHPRA has given the doctors a further chance to correct their advertising. However, if they do not provide acceptable evidence to support their advertising claims within 60 days, The Medical Board of Australia can impose conditions on the doctor’s registration restricting them from advertising anything other than the type of service they offer and their location.

This suggests AHPRA considers the sanction of conditions is more effective than prosecution or a fine when it comes to advertising.

To help you and your practice comply with the advertising guidelines, refresh your knowledge of the dos and don’ts below.

Testimonials

Testimonials are one of the most common areas where practices inadvertently breach advertising laws. Testimonials are defined as statements, reviews, views or feedback about a service that has been received or provided. Under the National Law, both solicited and unsolicited testimonials which contain recommendations or positive statements about clinical aspects of a regulated health service (usually provided by a registered health practitioner) are prohibited and should be removed. This includes patient feedback posted on practice websites or social media accounts, for example, a practice Facebook page.

However, practices are not responsible for removing unsolicited testimonials published on websites or social media they do not control.

AHPRA has published examples of content which breaches the advertising laws. For example, the patient feedback below is clearly a testimonial about clinical services and is prohibited in advertising:

When I was first diagnosed, I felt there was no hope for me to survive. I had constant pain and was unable to care for myself. But then I saw Dr Smith at Wonders Day Surgery. Dr Smith agreed with my diagnosis but was able to provide treatment which saved my life. Dr Smith cured me and I have no more pain.

If you’re unsure whether or not the feedback relates to clinical services, it’s best to seek legal advice or leave it out. AHPRA’s testimonial tool is also useful to help you decide if a testimonial complies with the National Law.

Unreasonable expectations of beneficial treatment

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

As highlighted by AHPRA, the advertising below is prohibited:

At the Rose Street Clinic we provide advanced surgical services including mandibular osteotomy.

This procedure involves significant risk associated with surgical and/or anaesthetic complications and without a warning to seek a second opinion, could create an unreasonable expectation of beneficial treatment.

When advertising surgical or invasive procedures directly to the public, a clearly visible warning should be included, for example: Any surgical or invasive procedure carries risks. Before proceeding, you should seek a second opinion from an appropriately qualified health practitioner.

Misleading or deceptive advertising

Practices who advertise in a way that can be considered false, misleading or deceptive can breach 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 advises 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.

AHPRA’s example below is considered misleading and deceptive:

Our treatment can help with:

  • Back pain
  • Neck pain
  • Asthma
  • Depression
  • Behavioural disorders

This advertising lists a broad range of conditions and it’s not clear how the treatment being advertised will help with each condition listed. The claims are not supported by acceptable evidence and may mislead consumers.

The treatment advertised may be able to help manage symptoms often associated with a condition (for example, muscular tension associated with asthma) rather than treating the condition itself.

If this is made clear in your advertising, it is unlikely to mislead consumers.

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.

Advertising unnecessary use of health services

Advertising may also breach legal requirements 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 ‘achieve the look you want’.

Key lessons

When advertising your practice do not:

  1. Use testimonials or purported testimonials about the service or business.
  2. Create an unreasonable expectation of beneficial treatment.
  3. Make misleading or deceptive claims.
  4. Offer an inducement such as a gift or discount, unless the relevant terms and conditions are also included.
  5. Encourage the indiscriminate or unnecessary use of a regulated health service.

If in doubt about a claim, it’s best to leave it out of your advertising.

More information

Read our articles: First prosecution of a healthcare corporation and for unlawful advertising and Advertising your practice while staying within the law.

Review AHPRA’s Guidelines for advertising regulated health services.

Kate Gillman, BA, LLB, Head of Avant Medico-legal Advisory Service

Disclaimer: The information used in these examples is for guidance only. If, after reviewing the examples listed, you are still unsure if your advertising complies with the National Law we recommend you seek advice from your professional association, insurer and/or independent legal adviser.

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