The issue of patient testimonials has been in the news recently, with an online booking business under scrutiny because of its review system. According to media reports, editing of the patient reviews on the site had in many cases effectively turned a negative review into a positive.
We have written about advertising healthcare services before but, as recent events have shown, the use of reviews and testimonials is a particularly complex issue for health practitioners.
So what are the current obligations concerning testimonials? AHPRA recently issued some additional guidance about testimonials (testimonial tool), which has now been updated to address the issue of editing testimonials.
Under the National Law, you must not advertise a service provided by, or usually provided by, a health practitioner (a “regulated health service”), or a business that provides a regulated health service, in a way that uses testimonials or purported testimonials about the service or business. This applies across print, website, radio, television, social media, and any other form of advertising.
Guidelines issued by AHPRA clarify the National Law provisions, providing that the word “testimonial” has its “ordinary meaning of a positive statement about a person or thing” and includes “recommendations, or statements about the clinical aspects of a regulated health service.”
The testimonial tool and recent update clarify that you should not use a testimonial that refers to a clinical aspect of care – whether that is a solicited or unsolicited testimonial – in your own advertising, including your website and social media.
According to AHPRA’s testimonial tool, a “clinical aspect of care” can include an explicitly described symptom, a description or inference of the diagnosis or treatment, and description of the outcome, or clinical skills or expertise of the practitioner.
The testimonial tool distinguishes between “testimonials” and “reviews”. In the initial media release in May 2018 about the new testimonial tool, AHPRA’s CEO provided further clarification that reviews about “friendly staff, plenty of parking or extended opening hours, for example” were permitted.
This prohibition on testimonials under the National Law does not prevent patients from sharing views through consumer and patients’ information sharing websites that invite public feedback about their experience and ratings websites.
While you are not required to remove positive comments from these other platforms that are outside your control, you should not repost any compliments from these platforms’ social media channels on your own advertising as these too will likely be seen as breaching the prohibition on testimonials.
Further, you should not encourage patients to post positive comments about you on any third-party websites.
AHPRA suggests that selectively editing reviews or testimonials has “the potential to be false, misleading or deceptive” and, may for that reason be unlawful under the National Law even if it is not in breach of the ban on testimonials. The following are provided as examples of scenarios that are “inherently misleading”:
AHPRA’s testimonial tool recommends publishing only complete and unedited reviews (being feedback about healthcare experiences that does not refer to clinical aspects of care) to avoid breaching the National Law requirements.
However, it can be very easy for a patient’s positive review of the practice to stray into a discussion of clinical care. Given the concerns about selective editing, as noted above, removing references to clinical care may be misleading. The safest course of action may still be to make sure that your website and other social media platform settings do not allow users to leave comments. If you do find comments that could be testimonials on your website or social media platforms, you should remove them to avoid potentially being found to be in breach of the National Law.
An edited version of this article was originally published in Medical Observer on 9 July, 2018.
By: Ruanne Brell, BA, LLB (Hons), Medico-legal Advisor, Avant’s Medico-legal Advisory Service