Beware Testimonials

This article outlines the requirements with respect to the use of testimonials in advertising.

Case history

The Plastic Surgeon developed a website for his practice. Several months after the website went live, he received a letter from AHPRA enclosing a complaint from a colleague that his website contravened legislative requirements because it included patient testimonials.

Medico-legal issues

The Surgeon contacted MDA National’s Medico-legal Advisory Service for advice. A review of his practice website revealed a tab labelled “Testimonials” which included a number of positive comments made by patients about the outcome of procedures performed by him.

The Surgeon was advised to remove the testimonials from his website as soon as possible because this information was in breach of his obligations under the National Law.

The Medico-legal Adviser assisted the Surgeon in preparing a letter of response to AHPRA, stating that on receipt of the letter from AHPRA he had immediately sought advice and removed the testimonials from his website. He acknowledged that he had been unaware of his obligations under the National Law with respect to advertising. He confirmed that since receiving the complaint he had read the Medical Board of Australia’s policies – Guidelines for Advertising Regulated Health Services  and Social Media Policy.

Discussion

Section 133 of the National Law states the following:

1. A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that:
   (a) is false, misleading or deceptive or is likely to be misleading or deceptive
   (b) offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer
   (c) uses testimonials or purported testimonials about the service or business
   (d) creates an unreasonable expectation of beneficial treatment
   (e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

It is important to note that testimonials are only prohibited if they are used for the purposes of advertising a regulated health service and/or practitioner. A breach of these advertising requirements is a criminal offence and a court may impose a financial penalty – up to $5,000 for an individual and $10,000 for a body corporate.

A testimonial includes recommendations, or statements about the clinical aspects of a regulated health service.

Testimonials in advertising include:

1. patients posting comments about a practitioner on the practitioner’s business website, particularly when the website encourages patients to do so and/or selectively publishes patient comments
2. the use of patient stories to promote a practitioner or regulated health service.

This means it is not acceptable to use testimonials in your own advertising, such as on your website, in a print advertisement or on a practice Facebook page. However, practitioners are not responsible for removing (or trying to have removed) unsolicited testimonials published on a website or in social media over which they do not have control.

Summary points

• The National Law prohibits the use of testimonials in advertising only.
• Unsolicited public discussion and opinion sharing about health practitioners outside the context of advertising a regulated health service are not prohibited.
• The National Law does not prohibit a health practitioner using social media or providing comments in social media if they do not involve the practitioner (or their representative) advertising a regulated health service.

Dr Sara Bird
Manager, Medico-legal and Advisory Services
MDA National