Beware Advertising Your Wares

Under the National Law, a regulated health service must not advertise in a way that:

• is false, misleading or deceptive 
• uses gifts, discounts or inducements without the terms and conditions of the offer 
• uses a testimonial or purported testimonial 
• creates an unreasonable expectation of beneficial treatment 
• directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

Clear and thorough guidelines¹ have been developed to help medical practitioners understand their obligations.

Complaints about advertising

AHPRA received 300 complaints about advertising in 2014/15² across all regulated health professions. This was a decrease from 547 in the previous year.

Penalties 

A recent media statement by AHPRA and the Chiropractic Board stated:³

Over the last five years since the National Scheme began, the vast majority of practitioners have responded to the first AHPRA warning letter and amended their advertising, eliminating the need for and cost of further regulatory action.

If the practitioner fails to amend or remove their advertising, the Board considers and often takes possible disciplinary action – either for breaches of professional conduct under the National Law or for a statutory offence, which can be prosecuted through the magistrate’s court.

Breaching the National Law’s advertising requirements carries a maximum fine of $10,000 for a body corporate or $5,000 for an individual, per offence.

AHPRA has referred several more serious matters to the Australian Competition and Consumer Commission (ACCC).

FAQs

Is my practice website considered to be advertising?

Yes.

Can I use images in advertising?

Yes. Images of a real patient (who has provided written consent) are less likely to be misleading than stock photos or images of models. The guidelines state that “before and after” shots have a significant potential to be misleading or deceptive, and encourage the unnecessary use of health services. Before and after shots should be as similar as possible in content, camera angle, background, framing, exposure, posture, clothing, makeup, lighting and contrast.

What about testimonials on social media?

While testimonials are prohibited, doctors 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. For example, doctors do not have control over the RateMDs website, but they do have control over their own Facebook page.⁴

Should advertisements for surgical procedures contain a warning statement?

Yes. Advertisements for a surgical (or “an invasive”) procedure must include a clearly visible warning, with text as specified in the AHPRA guidelines.⁵

Can I use the terms “specialist” or “specialising in”?

You cannot use the title “specialist” unless you hold specialist registration as recognised under the National Law. The guidelines note that the phrase “specialises in” may be misleading or deceptive, and suggest the alternate phrases “substantial experience in” or “working primarily in”.

Besides the National Law, medical practices’ advertising must also comply with:

• the Australian Consumer Law, administered by the ACCC – in particular, regarding misleading or deceptive advertising
• laws administered by the Therapeutic Goods Administration – in particular, restrictions on advertising medicines.

References

1. Australian Health Practitioner Regulation Agency. Guidelines for Advertising Regulated Health Services. May 2014. Available at: medicalboard.gov.au/Codes-Guidelines-Policies/Guidelines-for-advertising-regulated-health-services.aspx
2. Australian Health Practitioner Regulation Agency. AHPRA Annual Report 2014/15. Available at: ahpra.gov.au/annualreport/2015/
3. AHPRA and Chiropractic Board take Action on False or Misleading Advertising [Media Statement] – 18 January 2016. Available at: ahpra.gov.au/News/2016-01-18-complaints.aspx
4. Bird S. Beware Testimonials. Defence Update Winter 2014:18.
5. Australian Health Practitioner Regulation Agency. Guidelines for Advertising Regulated Health Services. May 2014. Appendix 6, p22. Available at: medicalboard.gov.au/Codes-Guidelines-Policies/Guidelines-for-advertising-regulated-health-services.aspx.