Advertising of healthcare services and therapeutic goods is becoming more and more prevalent, especially with the growing use of social media.
Although it can be a helpful tool to attract new business, caution must be exercised to ensure that the advertising does not breach the Health Practitioner Regulation National Law 2009 (National Law), the Therapeutic Goods Advertising Code 2015 (TGA Code) or the Australian Consumer Law (ACL). It is important to have a clear understanding of what is and isn’t acceptable when choosing to advertise.
What is advertising and why is it regulated?
Advertising includes all forms of printed and electronic media that promotes a health service and includes any public communication using television, radio, billboards, pictorial representations, mobile communications and other displays, internet and social media. The aim of regulating advertising is to ensure that people can make informed decisions about their healthcare without being misled. Public safety is the overarching concern.
The National Law – Your responsibilities
Advertising of healthcare services is covered under the National Law.
Under section 133 of the National Law it is an offence to advertise a health service that is provided, or that is usually provided, by a health practitioner (or to advertise a business that provides such a service) in a way that:
- Is false, misleading or deceptive or likely to be so;
Offers a gift, discount or other inducement to attract a patient to use the service or the business without stating the terms and conditions;
- Uses testimonials or purported testimonials about the service or the business;
- Creates an unreasonable expectation of beneficial treatment; or
- Encourages the indiscriminate or unnecessary use of such health services.
If advertising does not comply with the National Law the consequences could include significant monetary fines or disciplinary action including limiting, suspending or cancelling a practitioner’s registration and their ability to practise. It is important to get it right and it is your responsibility to ensure your advertising complies with the law, even if the advertising is produced by a third party with your knowledge.
The role of AHPRA
As many members are aware, the Australian Health Practitioner Regulation Agency (AHPRA) monitors the advertising of healthcare services to ensure that practitioners and practices abide by the National Law.
In circumstances where AHPRA identifies that your advertising may not comply with the requirements under the National Law you will be sent a letter notifying you of the potential breach. It is common practice for AHPRA to allow the practitioner/or practice a period of time to review the advertising and address any possible breaches of the legislation. In our experience harsh penalties can be avoided in most cases by acknowledgement and taking prompt and appropriate action.
A recent experience
MIGA was recently able to assist a member who had received a notice from AHPRA regarding the advertising on his website. We reviewed the member’s website and identified potential breaches of the National Law. We advised our member to remove some content all together (including testimonials) and to reword content to ensure compliance. We also assisted the member by liaising with AHPRA to reach a satisfactory conclusion of the matter. The Medical Board was ultimately satisfied with the changes made to the website and did not take any further action. The member was grateful for our advice and support.
The role of the TGA
The Therapeutic Goods Administration (TGA) is part of the Australian Government Department of Health and responsible for regulating therapeutic goods.
On 1 January 2019 the Therapeutic Goods Advertising Code (No.2) 2018 will take effect and will supersede the current TGA Code. Amongst other matters, it will cover the requirements for advertising therapeutic goods and restricted and prohibited representations. It is important to note that there are different requirements depending on the type of therapeutic goods being advertised.
The TGA is the single body responsible for handling complaints about the advertising of therapeutic goods to the public. There is an online form that can be completed by members of the public if they believe that the advertising of a therapeutic good is illegal and the forms are lodged with the TGA.
The concerns will be assessed by the TGA and, if considered appropriate, the advertiser will be contacted and advised of the breach. They will be given the opportunity to correct the breach. If the advertiser takes no action or insufficient action, the TGA may choose to take the matter further. Further action may include referring the matter for criminal or civil action, issuing an infringement notice or lodging an injunction.
What you can do to ensure compliance
We encourage our members to take the time to familiarise themselves with the legal requirements surrounding the advertising of healthcare services and therapeutic goods to ensure that their advertising complies with the National Law, TGA Code and ACL. AHPRA says that responsible advertising is both a professional and legal obligation. Both AHPRA and the TGA aim to make compliance ‘easy’ for practitioners by focussing on providing easily accessible and helpful information on advertising requirements.
The National Boards have produced useful guidelines on advertising of health services see below.
Our Legal & Claims Services team is familiar with issues surrounding the advertising of healthcare services and therapeutic goods. We can provide you with guidance when you are planning or reviewing your advertising. In the event that you have received a notice from AHPRA, the TGA, or the ACCC, we can provide guidance and support with respect to addressing any concerns that have been identified.
Receiving a notice can be stressful but we are here to help. Please contact our team if you require assistance and support.