There has been quite a bit of buzz in the healthcare industry regarding the advertising restrictions imposed by the Health Practitioner Regulation National Law (the National Law), as in force in each State and Territory of Australia. We’ve had many enquiries from clients seeking a better understanding of what they can and can’t do when it comes to advertising their services. And rightfully so. The Australian Health Practitioner Regulation Agency (AHPRA) is cracking down on those who are not abiding by the rules and even sending nasty emails requiring health practitioners to tidy up their advertisements or risk having their advertisement further restricted.
But that’s not the worst of it.
Fines can be imposed up to $5,000 as an individual and $10,000 for a body corporate, and if you’re a registered health practitioner you may also be subject to disciplinary action under the National Law for unprofessional conduct.
What do you need to know if you’re a health practitioner and dabbling in advertising?
Firstly, does the National Law apply to you? The National Law defines who is a health practitioner for the purposes of these laws. The list is extracted from the National Law and copied at the bottom of this article. Once you’ve worked out whether the National Law applies to you and your practice, the relevant section regulating advertising in the National Law is s133. This section states:
“A person must not advertise a regulated health service, or a business that provides a regulated health service in a way that:
- a) is false, misleading or deceptive or is likely to be misleading or deceptive; or
- b) 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; or
- c) uses testimonials or purported testimonials about the service or business; or
- d) creates an unreasonable expectation of beneficial treatment; or
- e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.”
Let’s explore each of these sections briefly.
a) is false, misleading or deceptive or is likely to be misleading or deceptive
- You are not able to make any statements that have the potential to mislead or deceive people.
- This area of law is not limited to the National Law, it also spans across Australian Consumer Laws.
- It’s very important that you don’t engage in false, misleading or deceptive advertising as you may leave yourself open to the wrath of the ACCC which has discretion to impose some really heavy penalties.
- We recommend looking at the overall impression of your advertising (including website copy/text) and consider objectively how it could be interpreted by a consumer, particularly a consumer with little or no knowledge of the industry or service being sold.
b) 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
- This is often the section that gets people into strife.
- Advertising may contravene the National Law when it contains price information that isn’t exact, contains price information that doesn’t specify any terms and conditions, states an instalment amount without stating the total cost and/or doesn’t state the terms and conditions of offers of gifts, discounts or other inducements.
c) uses testimonials or purported testimonials about the service or business
- You’re not able to have testimonials on your website or generally in your advertising.
- Genuine reviews on Google or social media pages are exempt provided you don’t have control over the content.
d) creates an unreasonable expectation of beneficial treatment
- This section concerns itself with businesses not being able to take advantage of the vulnerable health consumer in their search for a cure or remedy.
- You must disclose the health risks associated with a treatment, provide a warning statement about any surgical or invasive procedures, and ensure not to make any claim or imply that treatment results are.
e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.
- A health practitioner must not use advertising that encourages a person to improve their physical appearance together with the use of phrases such as ‘don’t delay’, ‘achieve the look you want’ and ‘looking better and feeling more confident’.
- Think carefully when writing and reviewing the copy/text in your advertising and on your website.
- As a rule of thumb, stay clear of exclamation marks!!!
- It’s also worth noting that if a practitioner chooses to include scientific information in advertising, the information should be presented in a manner that is accurate, balanced and not misleading, uses terminology that is understood readily by the target audience, identifies clearly the relevant researchers, sponsors and the academic publication in which the results appear, and be from a reputable (e.g. peer reviewed) and verifiable source.
- This area of law can be a minefield to navigate through.
- In saying that, we’ve had our fair share of questions and have advised clients on how to ensure their websites and advertising complies with the National Law.
- If you have any questions or would like a review of your current or proposed website copy and/or advertising please get in touch with us.
“Health profession” means the following professions, and includes a recognised specialty in any of the following professions:
(a) Aboriginal and Torres Strait Islander health practice;
(b) Chinese medicine;
(d) Dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);
(f) Medical radiation practice;
(g) Nursing and midwifery;
(h) Occupational therapy;