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Patient information or advertising?

09 March 2021 | Ruanne Brell, BA LLB (Hons), Senior Solicitor, Medico-legal Advisory Service and Dr Vicky Phan, Risk Adviser, Avant.

Patient stories and testimonials can be a contentious area for practices.

The regulator has announced an audit of health practitioner advertising that affects eyecare professionals. Avant’s Ruanne Brell and Dr Vicky Phan outline what’s acceptable and what to avoid.

How do you communicate with patients about your practice and services? Like other aspects of running a business at present, that seems increasingly complicated.

Some practices now produce information videos to help patients understand what particular treatments involve. Can you also post these on your website and social channels? Could that be seen as advertising?

In our experience, most healthcare professionals recognise the need for responsible advertising that won’t compromise the public’s healthcare choices. However, as healthcare businesses explore more ways to communicate with patients online, understanding what exactly is advertising under the National Law and when the rules apply is increasingly complex.

The Australian Health Practitioner Regulation Agency (Ahpra) has progressively added to its guidance on advertising regulated health services. Its updated Guidelines for advertising a regulated health service (2020 Guidelines) came into effect on 14 December 2020 and help clarify some of these nuanced issues.

Have the rules changed?

The 2020 Guidelines don’t substantively change the requirements for advertising regulated health services.

They provide further explanation and examples of the way AHPRA interprets these obligations and what it considers advertising. We focus on sections 3, 4.1, 4.4 and the Definitions section of the 2020 Guidelines.

When is content advertising? 

Content could be described as something other than an advertisement: advertorial, branded content, content marketing. It may be verbal, printed or electronic.

As the boundaries increasingly blur between advertising, education and information, AHPRA is focusing on the intention and effect of communications. Any communication may be considered advertising if it promotes and seeks to attract a person to a regulated health service provider and/or attract a person to use the regulated health service.

Social media content could also be considered advertising. As could podcasts, public speaking engagements, books, media appearances, patient information sheets, patient recalls or other professional notices, office signage or mobile communications.

A patient information video explaining treatment or costs isn’t considered advertising if it’s provided in the context of a consultation where the patient has adequate opportunity to discuss the information and ask questions. However, the 2020 Guidelines warn against including material that could be interpreted as promoting the practitioner’s services.

Additionally, not all services provided by a healthcare business may be regulated health services. Products such as medicines or medical devices are not covered by the National Law but fall under different schemes including the Australian Consumer Law and Therapeutic Goods Act and associated regulations.

Many of the same principles apply, for example misleading and deceptive conduct would be prohibited under these regimes as well. If notified, Ahpra would refer complaints about these aspects of a healthcare business to the appropriate regulator, and the specific prohibitions and penalties differ.

What can you say?

Importantly, advertising regulated health services is permitted. Ahpra acknowledges advertising can be helpful and effective. You can still produce content Ahpra considers advertising, as long as it complies with the advertising requirements under the National Law.

The 2020 Guidelines include examples and decision trees to help clarify what is and isn’t permitted. Advertisements could breach the National Law if, for example, they:

  • Create an unreasonable expectation of outcomes or recovery time.
  • Overstate the potential benefit, or
  • Minimise the complexity or risk.

Be particularly careful to avoid:

  • Claims your health service is superior.
  • Claims about the effectiveness of a particular treatment or suggesting it can ‘cure’ a condition.
  • Suggesting treatments are ‘safe’, ‘effective’, ‘painless’, ‘infallible’.
  • Implying the practitioner has an exclusive or unique skill, or a particular qualification that they do not hold.
  • Patient stories or images that may create an unreasonable expectation of benefit. Any claims about effectiveness need to be backed by acceptable evidence, and the guidelines also explain what sort of evidence would be acceptable.

In the case of an agency or third-party publishing material, Ahpra considers you the advertiser if you publish or authorise content, direct someone else to draft or publish it, or if you are able to remove it.

Ensure anyone creating or publishing content on your behalf understands the advertising restrictions, and that you review content produced as you will be ultimately responsible.

While Ahpra has announced an audit of health practitioner advertising, it reiterates its strategy is to encourage compliance, and any regulatory action will be proportionate to any risk to the public. With this in mind, continue to communicate with patients, but understand your obligations and seek advice if in doubt.

This article was originally published in INSIGHT magazine on March 2, 2021


 

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