All doctors are registered under the Health Practitioner Regulation National Law Act (National Law).
Under the National Law, in relation to advertising, it is not acceptable to:
- make false and misleading claims;
- offer inducements, such as gifts or discounts, unless the relevant terms and conditions are also included;
- use testimonials;
- create unreasonable expectations of beneficial treatment;
- encourage the indiscriminate or unnecessary use of health services.
Penalties can be up to a $5000 fine for individuals.
The approach of the Medical Board of Australia (MBA) to date has usually been to send warning letters to offenders, but only take action when persistent advertising breaches occur.
The MBA guidelines for advertising have recently been reviewed, and new guidelines will come into effect on 17 March 2014.
The guidelines recognise that advertising is a legitimate way for doctors to provide reliable and useful information to consumers and potential patients to make informed decisions about accessing health services. The National Law provides that this should not be done in a misleading or deceptive way.
The guidelines offer suggestions for doctors who may be advertising, whether on their own website or through other media.
- Advertising should not exaggerate competence, education, training or experience. Professional qualifications quoted should be accurate.
- Claims made in advertising should be able to be substantiated.
- Information should be factual and objective. It can include accurate financial information of the doctor’s experience, teaching positions, publications and qualifications.
- It should not create unrealistic expectations about the services offered or the results that may occur.
- Advertising should not encourage inappropriate, unnecessary or excessive use of health services.
- The use of testimonials is not permitted.
- Information to compare a doctor’s services with others is not permitted, unless there is objective evidence on which comparison can be based. Claims should not be made that a particular doctor is safer or better.
- Advertising is not a substitute for normal informed consent processes for any procedure or treatment.
- Pricing information should be accurate and clear.
- Advertising should be “in good taste” and not in a manner which may bring the health profession into disrepute.
Recent media reports have highlighted the application of the new guidelines to social media, which may often convey messages about doctors’ competence, care and treatment. Some websites allow patients to anonymously post comments about doctors, for both good and bad reasons.
The MBA guidelines make it clear that any testimonial, whether by an identified person or not, which is used or promoted by a doctor, or where a doctor has authorised or procured a third party to promote the testimonial, will infringe the guidelines and the National Law. Despite media commentary, the MBA recognises that doctors cannot control everything that is said about them on social media sites. It will be an offence if a testimonial is used with the authority of the doctor, or where the doctor is using the testimonial to promote the doctor’s practice. This is different from unsolicited online comment, over which doctors do not have control.
The Chair of the MBA has noted:
“The Board expects practitioners to take reasonable steps to remove testimonials they are using to advertise or promote health services they provide, or when the testimonials are used by someone advertising the regulated services on their behalf. (This could be a third party who is advertising the services the doctor provides at the doctor’s request).
But the Board recognises that practitioners are unable to control what is written about them in a public forum.
The Board does not expect practitioners to actively monitor internet sites. We do expect them to ensure that their own advertising, or that done by others on their behalf, meets the MBA guidelines.”
It should also be noted that doctors are subject to ordinary trade practices and consumer legislation requirements that services be advertised and offered in a way which is not otherwise misleading or deceptive.