Health practitioners’ obligations when advertising professional services

Health practitioners’ obligations when advertising professional services

If you are a health professional or run a business that advertises health services, you must not engage in deceptive and misleading conduct. In this blog, we discuss health professionals’ obligations when it comes to advertising their services or therapeutic goods with a focus on the Australian Consumer Law (ACL) and the Health Practitioner Regulation National Law (National Law).

Health practitioners’ obligations under the Australian Consumer Law

Section 18 of the ACL prohibits anyone in trade or commerce from engaging in conduct that is misleading or deceptive or is likely to mislead or deceive.

Trade or commerce includes business or professional activities as well as not-for-profit business or activity. While health practitioners may not always consider that in practising their profession, they engage in ‘trade or commerce’, they must be aware that providing a professional service or selling a therapeutic good may fall into this definition. Further, health practitioners (particularly those in private practice) should be aware that when they provide a service, they are likely entering into a contract – even if nothing is written down.

The test for whether conduct (including statements such as those contained in advertising) is misleading or deceptive is whether the conduct leads, or is capable of leading, a person into error. That is, by allowing a person to form the wrong conclusion, or by creating a false impression, or remaining silent on important information or making false claims about a product or services.

When the Courts are asked to consider whether conduct is misleading or deceptive, they ask themselve,s “what is the dominant impression created by the statement?” This means that even if the statement is literally true, it may still be misleading or deceptive if the dominant impression it creates is false.

If this test is satisfied, the person who is responsible for the conduct may risk a civil claim being brought against them by the person who was misled or deceived seeking compensation under s.18 of the Competition and Consumer Act 2010.

Alternatively, the individual or business responsible could be fined under s.29 of the ACL by the Australian Competition and Consumer Commission (ACCC), which is responsible for enforcing the ACL. Section 29 of the ACL is similar to s.18, but it is a civil penalty provision, meaning that the ACCC has power to issue significant fines for a contravention. The ACCC is more likely to get involved in circumstances where a health practitioner is advertising a therapeutic good such as a medicine or medicinal device.

Health practitioners’ obligations under the Health Practitioner Regulation National Law

The other relevant law relating to misleading and deceptive conduct for health practitioners is contained in sections 113 to 120 and section 133 of the National Law.

It is vitally important that health practitioners are familiar with the prescriptions on advertising under the National Law as a failure to comply with the restriction may result in disciplinary action being taken by your National Board, or proceedings being commenced against you seeking the imposition of significant financial penalties.

Misleading use of professional titles

Sections 113 to 120 involve the protection of titles. These provisions provide that a person must not knowingly or recklessly use a protected title (e.g., medical practitioner, registered nurse etc.) in such a way that it could be reasonably expected to induce a belief that they are a registered practitioner under the National Law.

In other words, you cannot call yourself a medical practitioner unless you are registered as one.

Persons who contravene this prohibition risk serious consequences; fines of up to $60,000 for individuals and $120,000 for corporations. Individuals can also be jailed for up to 3 years.

False, misleading or deceptive advertisements by health practitioners

Section 133 of the National Law prevents a health practitioner from advertising a health service or a business that provides a health service in a way that:

  1. is false, misleading or deceptive or is likely to be misleading or deceptive;
  2. 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;
  3. uses testimonials or purported testimonials about the service or business;
  4. creates an unreasonable expectation of beneficial treatment; or
  5. directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

Persons who contravene this provision risk serious consequences; fines up to $5,000 for individuals and $10,000 for corporations, per offence. Further, contravening this section constitutes unsatisfactory professional conduct (see s.139B of the National Law). For serious contraventions, misleading and deceptive advertisement may constitute professional misconduct and put the health practitioner’s registration at risk.

Given the serious penalties that may be imposed, you should seek legal advice as soon as possible if it has been alleged that you have contravened s.133 of the National Law.

GET ADVICE FROM AN HEALTH LAWYER:  1800 659 114

Ahpra guidelines for advertising

There has not been much judicial consideration of s.133 of the National Law, but the Australian Health Practitioner Regulation Agency has published  Guidelines for advertising a regulated health service (Guidelines), which assist in clarifying the meaning of s.133.

As well as this, health practitioner national boards may develop more specific guidelines for advertising. For example, the Medical Board has developed Guidelines for registered medical practitioners who perform cosmetic surgery and procedures.

Such guidelines are not rules or law; they are meant to provide guidance to health practitioners and do not legally bind them. Nevertheless, health practitioners ought to pay attention to these guidelines, as a Court or Tribunal may consider them when considering advertising offences against s.133 of the National Law.

What does Ahpra consider to be advertising of health services?

According to the Guidelines, advertising includes all forms of verbal, printed and electronic communication that promotes and seeks to attract a person to a regulated health service provider and/or to attract a person to use the regulated health service. It extends to many different types of mediums such as television, radio, flyers, billboards, the internet and social media platforms designed to disseminate information.

Importantly, anyone who advertises a regulated health service is considered an advertiser for the purposes of s.133 of the National Law.

Ahpra guidelines for misleading use of professional titles

While it may seem obvious that misusing a protected title is misleading and deceptive conduct, health professionals should be aware of other ways that they may mislead, even unintentionally, in describing their title or qualifications.

For example, the Guidelines set out that the use of other words, such as ‘specialist’, may be misleading in circumstances where the health practitioner does not hold specialist registration. If you do not hold specialist registration, then you should not use the word specialist, but describe yourself as ‘having substantial experience in’, or other similar phrasing.

Health practitioners should also be careful about using descriptive terms that may also be titles. For example, even if a medical practitioner has extensive experience in cancer treatment, they cannot call themselves an oncologist unless they are registered as an oncologist.

Further, while ‘doctor’ is not a protected title, it does not mean that the use of ‘doctor’ might not be misleading. For example, the use of ‘Dr’ or ‘Doctor’ may be misleading if it suggests that a person is a medical practitioner when they are not. If a health practitioner (aside from a medical practitioner) wishes to call themselves ‘Doctor’ or ‘Dr’, they should make it is clear that they are not a medical practitioner. For example, Dr John Smith (Dentist), would be an appropriate way for a dentist to describe themselves.

In our experience, often complaints about misleading advertising are made by other health practitioners, usually by competitors in a relevant health profession. This entails significant cost, considerable business distraction and anxiety for the subject of the notification.

We therefore recommend that health practitioners give careful consideration to any guideline published by their National Board and seek advice if they hold any concerns. The costs of early advice are infinitesimal when compared to the costs of responding to a notification. Hall Payne Lawyers has significant experience in advising health practitioners in relation to advertising; being it websites or social media.

GET ADVICE FROM AN HEALTH LAWYER:  1800 659 114

Other matters for consideration when advertising health services

As outlined in s.133 of the National Law, health practitioners also need to take care in:

  • offering gifts, discounts or other inducements;
  • using testimonials;
  • creating unreasonable expectations of beneficial treatment; or
  • encouraging the indiscriminate or unnecessary use of regulated health services.

Gifts

Health practitioners ought to avoid offering gifts, discounts or inducements unless the advertisement explicitly states the terms and conditions of the gift, discount or inducement.

Health practitioners should not advertise their service as being ‘free’ if the service is paid for in some other way, such as if it is funded by Medicare.

Testimonials

Health practitioners need to avoid testimonials. While patients may express their views about the service and may post reviews on online platforms, health practitioners may contravene s.133 of the National Law if they make use of those testimonials or gather testimonials on a website that they control.

Unreasonable expectation of beneficial treatment

Health practitioners must not overstate the effectiveness of a treatment or act in ways to create an unreasonable expectation of the results.

Encouraging the indiscriminate or unnecessary use of health services

Health practitioners must not encourage patients to use their health services when that is unnecessary; for example, by suggesting regular or periodic appointments when those are unnecessary for treatment.

What does this mean for health professionals?

Health practitioners can avoid running afoul of advertising obligations under the ACL or the National Law by ensuring that any claims they make can be substantiated, including in the way they describe themselves.

If a health practitioner wishes to advertise their services and is concerned that their advertisement may contain statements that could be misleading or difficult to substantiate, they should reach out to a member of our Health Law team for legal advice.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au


  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.


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