Individual healthcare practitioners and businesses advertising regulated health services may soon be allowed to use patient testimonials in their advertising, if changes recommended by the Ministerial Council become law. Lifting the testimonial ban would be a significant change, bringing health service advertising in line with consumer expectations and advertising requirements for other services.
The Health Practitioner Regulation National Law currently prohibits the use of testimonials in health service advertising, except where they relate to non-clinical aspects of regulated health services. This regulation is in addition to that imposed by the Australian Consumer Law (and, where relevant, the Therapeutic Goods Act and Therapeutic Goods Advertising Code) on health services advertising.
There is a Bill before the Queensland Parliament which, if passed into law, would automatically remove the ban on testimonials in health service advertising in most States and Territories. (Further steps would need to be taken by the South Australian and Western Australian Parliaments to implement the changes there.)
Removal of the prohibition on testimonials is likely to be delayed until after the independent review of the regulation of health practitioners in cosmetic surgery. The outcome of this review is expected soon.
Does the National Law apply to the content I want to publish?
The National Law applies to the “advertising” of regulated health services (services usually provided by a healthcare practitioner).
The National Law does not define “advertising”, but the Guidelines for advertising a regulated health service issued by the Australian Health Practitioner Regulation Agency (Ahpra) and the National Boards define advertising as covering:
“all forms of verbal, printed or electronic public communication that promotes a regulated health service provider to attract a person to the provider (practitioner or business).”
Notably, the definition of advertising does not include:
- providing information about treatment or costs in a consultation, provided it could not be interpreted as promoting the practitioner’s services;
- material issued for the purpose of public health information;
- tenders and similar material that is not available to the general public or made available online;
- comments made by a patient about a practice or practitioner when the comments are not made on a site that is used to advertise a regulated health service, and the site or account is not owned, operated or controlled by the practitioner referred to in the comments; and
- promotion of the profession generally or training or education for the profession.
While the Guidelines do not have the force of law, they are likely to be considered in the context of any alleged contravention of the National Law.
To avoid inadvertently breaching the National Law, individual practitioners and businesses should consider whether their communications fall within the definition of advertising before they are published.
The current advertising requirements for health services advertising
If a communication is advertising, it needs to comply with the National Law and any other laws that usually apply to this type of advertising, for example, the Australian Consumer Law and, in relation to therapeutic goods, the Therapeutic Goods Act and Therapeutic Goods Advertising Code.
Under the National Law, advertising about a regulated health service must not:
- be false, misleading or deceptive;
- offer gifts, discounts or inducements unless the terms and conditions are made clear;
- use testimonials or purported testimonials;
- create an unreasonable expectation of beneficial treatment; or
- directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services.
The Guidelines provide helpful guidance about how these requirements are likely to be interpreted.
Is it a testimonial?
The Guidelines define testimonials as “a positive statement about clinical aspects of a regulated health service used in advertising”. A clinical aspect exists if one of the following is discussed:
- symptom – the specific symptom or the reason for seeking treatment.
- diagnosis or treatment – the specific diagnosis or treatment provided by the practitioner.
- outcome – the specific outcome or the skills or experience of the practitioner either directly or via comparison.
So, while a medical practice cannot currently publish a testimonial from a patient about their symptoms, diagnosis, treatment or the outcome of that treatment, it could publish a testimonial about a patient’s non-clinical experience at their practice. For example, a patient could provide a testimonial about friendly reception staff, nice waiting rooms, up to date magazines and short wait times.
What about third party review sites, and social media?
A registered health practitioner is not normally responsible for reviews posted by patients online where the practitioner or practice cannot control these reviews. However, reviews on social media sites or websites operated by the practitioner or practice that discuss clinical aspects are currently considered to be prohibited testimonials under the National Law.
A practical way to reduce risk of non-compliance is to disable any review functions on social media sites or websites controlled by the practitioner or practice. While reviews could be edited so that they only cover non-clinical aspects, editing reviews is a risky practice. If the part of the review that is removed or modified was negative, or not as positive as the part that remains, it is likely to be misleading to publish only the non-clinical part. In 2019, the Australian Competition and Consumer Commission (ACCC) pursued HealthEngine (an online marketplace for medical services that lists health practitioners and practices and facilitates bookings) for breaches of the Australian Consumer Law in relation to reviews on its website and app. HealthEngine admitted to editing patient reviews prior to publication, not publishing negative patient reviews, and not publishing ratings about whether the practice was recommended by patients when less than 80% of reviewers had answered yes to a question about whether they recommend the practice. HealthEngine paid a penalty of $2,900,000 in relation to this conduct.
It is also worth noting that some third party review sites allow practitioners to respond to patient reviews. The response itself may amount to the publication of a prohibited testimonial. As such, the risks involved in responding to patient reviews on third party sites should be carefully considered by the practitioner or practice.
How is the Health Practitioner Regulation National Law currently enforced?
Ahpra currently takes a risk-based approach to advertising compliance and enforcement, with action escalating depending on its assessment of the risk and the response of the advertiser.
Currently, advertisers who are found to contravene section 133 of the National Law (which contains the advertising requirements) may be prosecuted and ordered by a court to pay a penalty for each offence. The penalties are currently $5,000 per offence for individuals and $10,000 per offence for companies (these fines are expected to increase to $60,000 and $120,000 respectively when the testimonials ban is lifted).
Advertisers who are also registered health practitioners should be aware that they may face disciplinary action under their professional conduct rules for breaches of the National Law.
Preparing for the ban on testimonials to be lifted
If the prohibition on testimonials is removed as expected, Ahpra will no doubt publish updated Guidelines to assist advertisers to use testimonials in their advertising without contravening the National Law. Given the potential for consumers to be misled by patient testimonials in health services advertising, and the potential harm to consumers as a result of any misleading conduct, we expect that advertising containing testimonials following the lifting of the ban will be closely scrutinised by both Ahpra and the ACCC.
Advertisers should begin to consider what changes may need to be made to their current advertising compliance processes in anticipation of the changes. At present, prudent advertising review processes involve identifying whether aspects of advertising amount to a prohibited testimonial and, if so, ensuring that this content is removed. If the ban is lifted, there will need to be a more nuanced assessment as to whether the publication of the testimonial could be said to be misleading or otherwise contravene the National Law or the Australian Consumer Law.
Best practice to reduce the risk of non-compliance with the National Law (and other advertising laws) includes:
- being familiar with relevant legal requirements that apply to advertising your goods and services, including the National Law, the Australian Consumer Law and (where relevant) the Therapeutic Goods Act and Therapeutic Goods Advertising Code;
- ensuring all advertising claims can be properly substantiated;
- where testimonials are used, taking care to ensure they are not misleading or deceptive, both in terms of any representations contained in the testimonial and the relationship between the business and the person providing the testimonial;
- maintaining proper records throughout the advertising development and review process; and
- ensuring your business has a process for approving advertising that involves senior decision-makers within the business (and/or a legal review where appropriate). The process should allow time for changes to be made and consideration to be given as to what representations may be unintentionally conveyed by the advertising.