What is prohibited in advertising?

You must not advertise a regulated health service, or a business that provides a regulated health service, in a way that:
•    is false, misleading or deceptive or is likely to mislead or deceive
•    offers a gift, discount or other inducement to attract a person to use the service, unless the advertisement also states the terms and conditions of the offer
•    uses testimonials or purported testimonials
•    creates an unreasonable expectation of beneficial treatment
•    directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services. (Section 133 of the National Law.)

Misleading or deceptive advertising

Misleading or deceptive advertising can include advertising that, either directly or by implication or omission, misleads a consumer.

 An advertisement of a regulated health service should not:
•    claim that a person holds a type of specialist registration or title that they do not hold. Only certain health professions have approved specialties
•    omit information that is important to the consumer
•    use inaccurate or biased scientific information that does not clearly identify where the information was published and by whom
•    state that a treatment is effective, if not supported by acceptable evidence
•    claim that a treatment can ‘treat’ or ‘assist with’ a health condition without acceptable evidence
•    understate a treatment or procedure’s risks or potential risks
•    claim that you provide a ‘superior’ health service or that a treatment is effective if its effectiveness is unsupported by acceptable evidence.

You must be able to substantiate any such claim you make in your advertising.

Acceptable evidence will usually include formal and peer-reviewed research. Be wary of relying on ‘before and after’ studies, studies where bias is not controlled or anecdotal evidence based on your own or others’ observations.

Instead:
•    promote your professional services on their merits
•    approach what you say and do in your advertising honestly
•    think about what your advertisement is likely to say or mean to a layperson.

Can I offer gifts and discounts?

Your advertisements must not offer gifts, discounts or other inducements to attract a person to use the service, unless the advertisement also states the terms and conditions of the offer and such terms and conditions aren’t misleading.

To ensure your advertisement is lawful:
•    all price information should be exact, including any out-of-pocket costs, and terms and conditions should be clear and easily located
•    the total cost of the service should be displayed, if instalment payments are an option
•    a service should not be advertised as ‘free’ if a fee will be generated in another manner or through another source
•    eligibility criteria or restrictions should be clearly visible.

Can I include testimonials?

At present, it is unlawful to use testimonials to advertise regulated health services.

Testimonials include recommendations or positive statements about the clinical aspects of a regulated health service. They cannot be used or quoted in any advertising, inclusive of social media pages.

Testimonials also cannot be used to promote a practitioner or a service. For example, it is unlawful for you to advertise a patient’s ‘success story’ to encourage a potential consumer to use a regulated health service, as this may lead to an unreasonable expectation of beneficial treatment or outcome.

Any website over which you have control, which advertises a regulated health service or advertises your services as a health practitioner, should not contain testimonials.

If they are posted by another person, they should be removed by you.

Comments about your customer service or communication style are permitted as they are not about clinical aspects (symptoms, diagnosis, treatment or outcome).

However, watch this space, as it may soon be lawful to use testimonials when advertising regulated health services.

A Queensland parliamentary committee is currently considering a bill that proposes several amendments to the National Law, including removing the prohibition on the use of testimonials/purported testimonials about the service or business in the context of advertising regulated health services.

However, if it is passed, false, misleading and deceptive testimonials or testimonials that set unrealistic expectations of treatment will still be prohibited.

Unreasonable expectation of a beneficial treatment

It is unlawful for a person to advertise a regulated health service if the advertisement creates an unrealistic expectation of beneficial treatment.

For example, advertising may be unlawful if:
•    recovery time or outcome are exaggerated or benefits are overstated
•    health risks associated with a treatment are not disclosed or warnings are omitted
•    the advertising is likely to make a person believe that their health or wellbeing may suffer from not undertaking the service
•    the advertising claims that a treatment or an outcome is guaranteed, is fail-safe or promises a ‘cure’
•    photos portray unrealistic outcomes.

Encouraging indiscriminate or unnecessary use of health services

Finally, advertising may be unlawful if it encourages a person to use a regulated health service when it is unnecessary.

Problematic encouragement in advertising may take the form of:

•    encouraging a person to improve their physical appearance
•    giving a client an unsolicited appointment time
•    offering prizes or discounts to induce a person to use the service or to encourage a person to use the service more frequently.

Consequences of noncompliance

All advertisers of regulated health services must comply with the National Law.

Advertising in an unlawful manner is a criminal offence and a penalty may be imposed of up to $5000 for an individual or $10,000 for a body corporate.

Advertising in an unlawful manner may also result in disciplinary proceedings under Part 8 of the National Law for unprofessional conduct.

So, what can I include in my advertising?

Your advertising can contain information to help consumers make informed choices.

Information in regulated health services advertising might include the following:
•    office details, inclusive of contact information, office hours, accessibility, languages spoken and emergency contact details
•    fees—a statement about fees and charges (with exact price information), bulk-billing arrangements, other insurance plan arrangements or instalment fee plans
•    qualifications and experience, inclusive of specialist registrations or endorsements under the National Law, whether the practitioner is accredited, positions that the practitioner has held and schools from which the practitioner has graduated, along with qualifications received
•    clearly visible appropriate warning statements for surgical or invasive procedures
•    photographs or drawings of the practitioner and their office
•    any statement based on reputable evidence that provides public health information to help consumers improve their health.

For further information, refer to Ahpra’s advertising hub here, which includes links to information and resources for advertisers and health practitioners.

I’ve received a complaint about my advertising. What do I do?

Contact your insurer if you experience a complaint or if a claim is made against you relating to your advertising. If you’re a BMS policyholder, you can speak to the BMS team by emailing apa@bmsgroup.com or phoning 1800 931 068.

>> This article has been facilitated by APA’s insurance partner BMS and written by law firm Lander & Rogers.
Disclaimer: Lander & Rogers communications are intended for general information purposes only and cannot be regarded as legal advice. Although all care has been taken in preparing this fact sheet, advice must be sought from competent legal practitioners in relation to any particular matter or concern that you or your organisation may have. BMS Risk Solutions Pty Ltd (BMS) AFSL 461594, ABN 45161187980 is the official and exclusive insurance broker for the APA member insurance program.