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Health Alert

Advertising Regulated Health Services

| Published by Michael Gorton

All medical practitioners are registered under the Health Practitioner National Law Act (National Law). In addition to the National Law, in 2014 the Australian Health Practitioner Regulation Agency (APHRA) released the Guidelines for advertising regulated health services, developed with the National Boards responsible for the regulation of registered health practitioners, including the Chiropractic Board of Australia.¹

AHPRA recognises that advertising is a legitimate way for practitioners to provide reliable and useful information to consumers and potential patients in order to make informed decisions about accessing health services: however any advertising which contains false or misleading information may compromise health care choices and is not in the public interest. Under this proviso, any person who advertises regulated health services, including individual health practitioners, must make sure that their advertisements comply with the National Law and its accompanying guidelines.

The National Law requires that services must not be advertised in a manner which:

  • is (or is likely to be) false, misleading or deceptive; 
  • offers an inducement, such as a gift or discount, unless the relevant terms and conditions are included;
  • uses testimonials or purported testimonials;
  • creates an unreasonable expectation of beneficial treatment; or
  • encourages the indiscriminate or unnecessary use of health services (whether directly or indirectly).²

AHPRA has stipulated that the wording of the National Law is intentionally broad and as such it is not possible to provide an exhaustive list of advertising that will or will not contravene it. Nonetheless, the guidelines offer suggestions for practitioners in regard to advertising (whether this is through their own initiative or a third party):

  • Advertising should not exaggerate competence, education, training or experience. Professional qualifications quoted should be accurate.
  • Claims made in advertising must be able to be substantiated.
  • Information should be factual and objective. It can include accurate financial information of the practitioner’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 practitioner’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 practitioner 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.

Anyone advertising regulated health services must also comply with any other relevant legislation, including ordinary trade practices and consumer legislation and if applicable, legislation regulating the advertising of therapeutic goods. This includes compliance with the Australian Consumer Law and legislation issued by the Therapeutic Goods Administration. The National Law is also specific in its requirements regarding the use of protected titles, including specialist titles such as chiropractor.³

The Chiropractic Board of Australia expects all registered chiropractors to meet the advertising requirements in the National Law, and to take a proactive approach in ensuring compliance (this includes advertising created by a third party). The onus is on the practitioner to ensure compliance. Further information regarding compliance was released in October, and is available from the AHPRA website.4 

All chiropractic advertising complaints are considered by the Board, and this year advertising-related complaints formed the overwhelming majority of complaints to the Board. In the first instance, non-complying chiropractors will be contacted by the board to make changes to advertising where necessary. Where chiropractors do not meet legal obligations, the Board, along with AHPRA, will take regulatory action under the National Law. In deciding whether there has been a breach of advertising obligations, acceptable evidence to substantiate therapeutic claims must be provided.

Speaking on the matter, AHPRA CEO Martin Fletcher stated in August:

“Anyone advertising a regulated health service, regardless of whether they are registered health practitioners or not, must meet the requirements of the law. Patients and consumers have a right not to be misled by unclear or deceptive advertising.”

Additionally, the Board contacted all chiropractors this year to provide additional advice in regard to advertising, as well as holding a stakeholder forum in order to improve the quality of advertising by chiropractors. In its statement to chiropractors, the Board noted its concern with the number of practitioners claiming a relationship between manual therapy and the treatment of various diseases, infections and paediatric syndromes, which are not supported by satisfactory evidence. Examples of this included claims relating to developmental and behavioural disorders, ADHD, asthma, ear infections and digestive problems.

At the stakeholder forum, areas for improvement recognised by participants included the quality of advertising, continuing regulatory action, awareness raising, education and culture change in the profession and consumer input. The Board and AHPRA will be seeking to address these issues.

Case example

The Board has noted that it has a number of ongoing matters regarding alleged breaches of advertising.

A recent example of a chiropractor not meeting advertising requirements led to the cancellation of that chiropractor’s registration5. This was due to representations made by the chiropractor’s advertising being considered misleading and deceptive, as a balanced view of treatment was not provided, the actual effectiveness of the treatment was inaccurately depicted and claims were lacking evidentiary basis. This example demonstrates the importance of ensuring any claims used in advertising are founded, and that advertising complies with the existing regulations.

 

1 The Medical Board of Australia

See Section 133 of the Health Practitioner Regulation National Law (Victoria) Act 2009

See ss 113-119 of the Health Practitioner Regulation National Law (Victoria) Act 2009

Medical Board of Australia - More information about your advertising obligations

5 The case of Dr Malcolm Hooper: see Chiropractic Board of Australia website.

 

This article has been written by Michael Gorton AM and Isla Tobin.