Advertising in healthcare is highly regulated, and that shouldn’t come as a surprise because people can make life-changing decisions from these adverts. As a health professional creating or outsourcing content creation for advertising regulated health services (services provided by or usually provided by a health practitioner), it’s vital to stay up-to-date with the rules, as flouting them can result in prosecution.

The AHPRA(Australian Health Practitioner Regulation Agency) oversees compliance with the requirements for advertising regulated health services. The laws ensure that healthcare advertising remains accurate, evidence-based, and non-misleading. It also prohibits testimonials/reviews that mention clinical outcomes and requires that inducements, such as discounts, be offered with transparent terms and conditions. In this blog, we’ll break down the key AHPRA advertising rules that every health professional should know so you can stay compliant.

Understanding AHPRA’s Advertising Guidelines

AHPRA’s advertising guidelines are a product of the collaboration between the body and the 15 national boards that regulate registered health practitioners in Australia, as empowered by section 39 of the National Law. The guidelines are outlined in section 133 of the national law, and they state that:

(1) 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.

Maximum penalty—

(a) in the case of an individual—$5,000; or

(b) in the case of a body corporate—$10,000.

(2) A person does not commit an offence against subsection (1) merely because the person, as part of the person’s business, prints or publishes an advertisement for another person.

(3) In proceedings for an offence against this section, a court may have regard to a guideline approved by a National Board about the advertising of regulated health services.

 

These guidelines apply to anyone advertising regulated health services, whether a registered or non-registered health practitioner, an individual, or a corporate body. The guidelines are based on the premise that advertising regulated health services is a useful way to communicate with the public, enabling them to make informed choices. However, false and misleading information is against the public interest and may lead to the public purchasing or undergoing regulated health services that they don’t need.

In the context of these guidelines, advertising refers to any form of verbal, printed, and electronic communication that promotes and seeks to attract a person to use a regulated health service. An advertiser is the person who authorises the contents of the advert, and they’re responsible for compliance. It doesn’t matter if someone else (a third party, staff member, or marketing agency) published or drafted the content.

In the following subheadings, we will discuss the various parts of the advertising guidelines as outlined in Section 133 of the National Law.

Misleading or Deceptive Advertising

Every health professional should always keep in mind that they’re advertising to the general public with little to no knowledge of the health service. This helps you craft the content in a way that there’s no room for misinterpretation. Advertising can be misleading or deceptive, directly or by implication, via emphasis, comparison, contrast, or omission. Hence, you should take care not to omit important details, misuse scientific evidence, downplay risks, or suggest qualifications you don’t own. The onus lies on you to review advertising regularly for accuracy and ensure that all scientific claims are transparent and evidence-based. Finally, always consider how the public will understand the overall message.

Restrictions on the Use of Testimonials

Advertisements for a regulated health service cannot include testimonials, such as patient stories and experiences, whether factual or fabricated, because they may mislead patients or create unreasonable expectations of care. In the context of the National Law, any recommendation or positive statement that includes the clinical aspect of a health service, such as the symptoms, diagnosis/treatment, and the skills/experience of the practitioner, is regarded as a testimonial. A review that merely references customer service or communication style is not a testimonial.

Patients often share their experiences on social media, discussion forums, search engines, or independent review platforms. However, health professionals cannot use these reviews in the content of an advert or engage with these reviews in a way that is deemed to be advertising their services. When reviews appear on third-party platforms that advertise health services, the platform owner is responsible for the authenticity of the testimonials. However, practitioners must still ensure any other content they control on the site complies with AHPRA’s advertising requirements.

Furthermore, your website or business social media as a health practitioner should not display reviews or testimonials, and you should remove/disable this feature where possible.

Restrictions on Offering Gifts, Discounts, or Inducements

Any advertisement of a regulated health service that offers a gift, discount, or any other inducement must clearly state the terms and conditions of the offer in plain language. If an advertiser fails to include the terms and conditions of an offer or misleads the general public, they’re in breach of the National Law. For example, the phrase ‘free of charge’ must mean precisely that, and not that the costs are recouped through a price increase elsewhere or through Medicare.

The terms and conditions of the offer should be accessible to anyone who views the advertisement, whether through a link or directions to a website section, and not by contacting the advertiser.

Avoiding Unreasonable Expectations of Benefit

A good example of unreasonable expectations created by an advertisement is when it includes testimonials from other patients, as there’s no guarantee of the exact outcome. It could also refer to unsubstantiated scientific claims, miracle cures, exaggerated potential benefits, risk minimisation, or outright false information in advertisements.

As a health professional, you should also exercise caution when using ‘before-and-after’ images so that they do not create an unreasonable expectation of benefit. Images must be genuine and unedited, and must clearly show how the advertised treatment is responsible for the change in the image.

Encouraging Indiscriminate or Unnecessary Use of Services

You’re in breach of national laws if your advertisement encourages the unnecessary use of regulated health services. An advertisement can create a false sense of urgency by using words like ‘don’t delay’ or ‘time is running out’ when there’s no clinical indication for the service, or by including incentives, gifts, or prizes to encourage its use, thereby promoting indiscriminate use.

Ensuring Compliance: Penalties and Enforcement

AHPRA Advertising guidelines help to explain your legal obligations to the public when advertising; however, they do not provide advice about whether a specific advertisement is compliant. You should consult your lawyer or indemnity insurer regarding this matter. Note that any breach of the laws will be met with the necessary regulatory force.

A breach of the advertising requirements is a criminal offence that can attract a penalty of up to $5,000 for an individual and $10,000 for a body corporate. As a registered health practitioner, you may also face further disciplinary action for unprofessional conduct in relation to advertising under the National Law.

Conclusion: Upholding Ethical Advertising Practices

As a health professional, your oath to serve the general public is not limited to the walls of your practice; it also extends to clear, accurate, and ethical advertising, so that patients can make informed decisions about their healthcare. We hope you’re now better informed about your duty to ensure professional integrity in healthcare advertising.